Māori lawyer Annette Sykes. Photo: RNZ / Patrice Allen
A veteran Māori lawyer has joined calls for the government to stop progress on a law making it harder for Māori to get customary marine title (CMT).
The government said the changes would restore the legislation to its "original intent".
That's been refuted by former Attorney-General and Treaty Negotiation's Minister Chris Finlayson who said the changes would be "extremely harmful" to race relations in New Zealand.
Speaking to RNZ, Māori lawyer Annette Sykes said the proposed changes were "punitive" and "mean-spirited".
"There's a lot of frustration now. People are ringing me every day asking 'are we going to hīkoi again whaea?' People are saying, how can we activate our communities because this isn't fair."
The government wants to amend section 58 of the Marine and Coastal Area Act, which requires an applicant group to prove they have exclusively used and occupied an area from 1840 to the present day, without substantial interruption.
The changes would overturn a judgement by the Court of Appeal in 2023 - Re Edwards - which ruled applicants only needed to show they had enough control over the area that they could keep others from using it, and situations where the law itself had preventing them from doing so could be ignored.
The judgement effectively made it easier for applicants to get CMT, and in 2024, the Supreme Court overturned that decision, something that was hailed by another former MP as making law intent clear.
The Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill is likely to pass its second reading this week.
Sykes was one of the successful applicant lawyers on the Re Edwards case and told RNZ it took a lot of time and resource to pull their claim together.
"We, against all odds, were successful in getting that title. It was appealed from the Court of Appeal and to the Supreme Court, and the test was tightened up in its interpretative outcome, but the Supreme Court, once it applied the test, said that Te Whakatōhea had made it." she said.
"It's really expensive. A lot of the knowledge keepers are likely to have passed away since 2011 - even the lawyers. I'm one of the more elderly lawyers at the bar... I'm certainly a lot older than I was when this matter first emerged in 2011. Now 14 years later, and it will be another 14 years for some of my other claimants to be heard."
Sykes said a "sinister relationship" between lawmakers and the courts was starting to emerge.
"While the Supreme Court was making the decisions they did on Whakatōhea, we had a coalition agreement being entered into that, without even knowing what the Supreme Court had said, was saying that the test was difficult, that it was not going to work, it was an unworkable - of course, that's not the case." she said.
"As a lawyer, I find that quite difficult."
The act allows claims for CMT, which recognises iwi, hapū or whānau connection to a part of the marine and coastal area.
It replaced the contentious Foreshore and Seabed Act of 2004, and plans amend it were part of the National-NZ First coalition agreement.
The amendment seeks to define and clarify the terms "exclusive use and occupation" and "substantial interruption", and clarify sections of the law to "operate more in line with its literal wording".
More than 200 applications for customary marine title are making their way through the courts and if the changes are made, they would need to meet the new, higher threshold.
The law would apply retrospectively, meaning any court decisions issued after 25 July 2024, would be void and need to be reheard.
The government has set aside about $15 million to cover the additional legal costs.
Sykes said she thought the retrospective nature of the bill was a "breach of good faith".
"I think it's also a punitive effort to penalise us and make us more difficult to prove our pre-existing rights and interests to be recognised by the common law courts and the courts of this land."
It was also cynical, she said.
"It's a cynical effort by the current ministers to promote an ideology that I don't think is backed by the facts of what's emerging in the courts.
"That ideology is that, [if] Māori have rights, they are going to exclude non-Māori from enjoying the lands, the fisheries, the forests, the foreshore and seabed where those rights are to be given effect.
"It's absolutely unheard of in Te Whakatōhea to deny their Pākehā members of their families, their Pākehā neighbours, even descendants of soldiers from the colonial wars, a right to enjoy in tandem with them, the foreshore and seabed."
Sykes' comments come after Ngātiwai rangatira Aperahama Edwards was ejected from Parliament during a tense debate on the bill.
Edwards told RNZ the amendments were the "biggest raupatu" (confiscation/theft) Māori had ever faced.
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