Foreshore legislation (2004) and trade agreement (2005) reverberate in latest Beehive announcements

Events in the early 2000s – the enactment of the Foreshore and Seabed Act 2004 and the signing of the Trans-Pacific Strategic Economic Partnership Agreement by Brunei, Chile, New Zealand and Singapore in 2005 – have had consequences which are reflected in announcements from the Beehive in the past two days.

Treaty of Waitangi Negotiations Minister Andrew Little this morning announced the Crown has recognised 14 customary marine title areas along the East Cape and East Coast in nga rohe moana o nga hapu o Ngati Porou.

And Trade and Export Growth Minister Damien O’Connor yesterday welcomed the United Kingdom’s intention to submit a formal request to accede to the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP).

The wording of Little’s statement is curious.

“This recognition reflects the determination of nga hapu o Ngati Porou to safeguard their longstanding customary rights and the continued exercise of mana by nga hapu o Ngati Porou in their rohe moana.”

Does this mean claimants who have yet to secure a similar safeguarding of their customary rights are insufficiently determined?

But let’s backtrack.

The political furore around the passage of the Foreshore and Seabed Act 2004 (as Stuff’s Marty Sharp recalled in an article last year) sparked the birth of the Maori Party, a huge hikoi on Parliament, countless hui and speeches, and years of debate, report-writing, law-making, and confusion.

In 2008 National formed a minority government with the support of the Maori Party and – two years later – the Foreshore and Seabed Act was repealed and replaced by the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA).

Under the new legislation no-one would “own” the foreshore and seabed, but Maori could pursue their claims to “Protected Customary Rights”, and “Customary Marine Title”.

At the time of Sharp’s report, 589 applications had been filed; 387 directly to the Crown (of which 175 were also made to the High Court), and 202 directly to the High Court.

In his statement today, Andrew Little explained that customary marine title recognises customary rights and interests that whanau, hapu or iwi can show they have had in an area of the takutai moana (common marine and coastal area) from 1840, in accordance with strict legal tests.

Ngati Porou were the only iwi that reached an agreement with the Crown under the Foreshore and Seabed Act 2004. When that law  was reviewed and repealed, the Crown undertook to honour its existing commitments to Ngati Porou.

Following the passage of the Marine and Coastal Area (Takutai Moana) Act in 2011, the original agreement was updated to reflect features of the new Act, including the new legal test for customary marine title. The agreement was given effect by Nga Rohe Moana o Nga Hapu o Ngati Porou Act 2019.

Customary marine title enables the holders to exercise certain rights through involvement in resource consent and Conservation Act processes, customary fisheries management, the ownership of non-Crown minerals and taonga taturu in the title area, and protection of wahi tapu, such as grave sites.

The customary marine title orders take effect today.

Customary marine title is not fee simple ownership, but an expression of customary rights and interests in part of the common marine and coastal area. The marine and coastal area (takutai moana) is the land from mean high water springs out to the territorial limit. In other words, it is the “wet part” of the beach, and the seabed out to 12 nautical miles.

Customary marine title does not affect general public access, fishing (subject to bylaws being made to protect customary fishing areas), or navigation rights.  However, the right of public access in the common marine and coastal area does not give any new rights to the public to cross private land without permission to reach the marine and coastal area.

Applications for customary marine title are determined by the High Court or the responsible Minister, depending on to whom the application was made.  The legal tests, and the thresholds for evidence, are the same.

The Trans-Pacific Strategic Economic Partnership Agreement signed by Brunei, Chile, New Zealand and Singapore in 2005 was later expanded to become the Trans-Pacific Partnership (TPP), also called the Trans-Pacific Partnership Agreement.  This was a trade agreement embracing Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and the United States signed on 4 February 2016.

But after his election, President Donald Trump withdrew the US signature in January 2017 and the remaining countries negotiated a new trade agreement called Comprehensive and Progressive Agreement for Trans-Pacific Partnership.  This incorporates most of the provisions of the TPP and entered into force on 30 December 2018.

The United Kingdom at the weekend announced its intention to submit a formal request to join the CPTPP.

Damien O’Connor enthused:

“The challenges facing the global trade and economic environment have been compounded by COVID-19.  In this context, New Zealand sees the CPTPP objective of maintaining and growing open, rules-based trade, as more important than ever.  We believe the CPTPP can provide leadership in our region and beyond to drive post-COVID economic and trade recovery.  The UK’s move to join the CPTPP underlines the Agreement’s importance in this regard.  

“To start this process, the United Kingdom needs to present a letter to New Zealand, as Depositary for the CPTPP, formally expressing its interest in joining the 11 member trade agreement.”  

Under CPTPP guidelines, the next step requires all CPTPP members to discuss the United Kingdom’s request and establish a working group to negotiate UK accession to the Agreement.

O’Connor said:

“New Zealand has always supported the expansion of the CPTPP by those willing to meet the Agreement’s high quality, so we warmly welcome the news that the UK intends to take the formal step shortly to start this process.”

“With the UK set to be the first to make such a formal request following the entry into force of the CPTPP, it will be important to set a strong precedent which reinforces the commitment of new members to fully deliver the high standards, including on market access, that are a hallmark of the CPTPP.  We look forward to discussions with the UK to achieve this outcome.”

New Zealand launched trade negotiations with the United Kingdom in June 2020 and is working to achieve an ambitious, comprehensive and inclusive bilateral Free Trade Agreement.   Both sides see conclusion of a high quality, comprehensive and future-focussed FTA as a valuable stepping stone towards the UK joining the CPTPP.

The United Kingdom is New Zealand’s sixth largest trading partner, with two-way trade of almost NZ$6 billion in 2019.  With the UK’s departure from the European Union, the UK has moved to launch a range of new trade negotiations, including separately with the US, Australia and New Zealand; and now the CPTPP as a group.

Notes accompanying the press statement say:

* The CPTPP is an 11-member trade agreement involving New Zealand, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, Peru, Singapore, and Viet Nam.  It entered into force on 30 December 2018.

* New Zealand performs the legal ‘Depositary’ functions for the CPTPP.  This entails maintaining the legal copies of the Agreement and any amendments, as well as receiving and circulating certain official correspondence concerning the Agreement.

What happens next?

* CPTPP Ministers agreed on accession procedures at the first meeting of the CPTPP Commission held in Tokyo in January 2019.

* Under these procedures, CPTPP members will now discuss the United Kingdom’s request and consider establishing a working group to negotiate the UK’s accession.

* A key part of these discussions will be to understand the UK’s situation and to identify how it will meet the standards required under the CPTPP – both its rules and in respect of market access commitments.

When will accession negotiations start?

* The accession procedures do not specify a timeframe.  They indicate, however, that the CPTPP members need to make a decision on whether or not to establish a working group ‘within a reasonable period of time’.

* Those seeking to accede are encouraged to consult with each of the CPTPP members individually to answer any questions or concerns they may have, which may take some time.

How does the UK’s application to join the CPTPP affect the New Zealand-UK FTA negotiations?

* Both sides are committed to working actively to conclude a high quality, comprehensive and inclusive bilateral FTA.

* Negotiations were launched in June last year and we have had two rounds so far, with a third round currently under way.

* We both see early conclusion of a high quality bilateral FTA as a valuable stepping-stone towards UK accession to the CPTPP.

Latest from the Beehive

1 FEBRUARY 2021

Long-held customary interests of Ngāti Porou hapū recognised

31 JANUARY 2021

New Zealand welcomes news of UK request to join CPTPP

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