Cabinet frets over funding for Māori foreshore claims
Public funding for Māori claims to rights over areas of coastline could face further tightening, despite blunt cuts in 2024 being found to have seriously breached the Treaty of Waitangi.
Treaty Negotiations Minister Paul Goldsmith says the $13m set aside in this year's Budget followed a potential blowout a year ago to $30m – but a coming wave of court hearings and direct negotiations still presents problems for the Government.
He has told MPs the Government is now 'turning our mind to the whole framework to see if there's a better way' to arrange financial support for resolving claims under the Marine and Coastal Areas (Takutai Moana) Act.
The last cuts for 2024/25 put caps on funding, reduced claimants' lawyers maximum pay rates to those in the legal aid system and forced some to cover the work pro bono (for free) to keep hearings going.
Cabinet refused the projected additional funding despite Goldsmith and Māori Development Minister Tama Potaka recommending a further $19m to cover the claimant costs for that year.
The Waitangi Tribunal found the way the funding limits were imposed last year breached the Treaty by insufficient consultation, prejudice to the cases before the courts and lacked analysis of legal or treaty implications.
It said there are hundreds of court claims and also hundreds of bids for direct negotiations to come, but the direct negotiations had essentially never started and had little chance without funding. The cuts caused 'confusion and disruption to scheduled hearings.'
The increase in costs should have been predictable for both past and present governments and officials because Māori had entered the legal process years ago, building cases towards High Court hearings. Preparing for and appearing in court cases was a higher cost than initial research and interlocutory phases. Those cases were starting to hit the courts as part of the normal progression of legal action.
'The escalation of hearings in the High Court is a natural consequence of the Crown's regime, the number of applications filed and the High Court fulfilling its judicial function of determining applications before it.'
The $12m in applicant funding for 2024/25 was 'demonstrably insufficient'.
Separately the Government introduced a bill in 2024 to amend the MACA Act to tighten criteria by which iwi, hapū and whānau can prove continuous, exclusive use under tikanga (custom) of coastline and waters since 1840. The amending bill would send unresolved court cases for Customary Marine Title (CMT) back to the High Court for re-hearing under its new provisions.
In parallel, the Supreme Court set out alternative criteria in a November judgment which would also tighten possibilities of successful claims, and that has seen the Cabinet put the amending law on hold for seven months so it can decide which way to proceed.
When Goldsmith appeared before Parliament's Māori affairs select committee as part of Scrutiny Week, MPs quizzed him on the Government's response to the Supreme Court decision, the fate of its amendment bill and its view on the Waitangi Tribunal criticism over the funding cuts.
Green MP Steve Abel suggested the now stalled amendment bill would have worsened Goldsmith's budget problem over funding claims under the MACA Act because it would make Māori go back to court for repeated hearings, with a big double-up in costs.
The minister answered: 'Based on the legislation we had introduced there was going to be a cost to potentially rehear elements of cases that were underway. The Government is still considering that.
'There's going to be an extra cost and we recognised that but our view was that those costs were justified.'
He told Labour's Ginny Andersen the primary budget pressure point for the Government for agency Te Tari Whakatau (successor of Arawhiti – the Office of Crown Māori relations) was 'the payments for claimants for Takutai Moana. The demand is high and our ability to meet the demand is constrained.'
Andersen asked if the cost blowout calculated in 2024 impacted the decisions the coalition took in pushing the MACA amendment bill.
'No, we felt the Court of Appeal had come up with a threshold materially different from what the Parliament had expected.
'The cost of the process we are going through at the moment is very high. The first step was to put some budgetary restraint around that as part of a much broader restraint government-wide.'
The Waitangi Tribunal's findings on the cuts to the MACA Act funding scheme said 'the Crown does not suggest that the increase in costs incurred by applicant groups weren't actual or reasonable.
'When we consider the claims in this context, we acknowledge that this is an expensive regime. However it is the regime the Crown created. Māori have participated in the regime in good faith.
'The Crown accepts their costs have not been unreasonable. The Crown is concerned that its own regime costs more that it would like, a problem not caused by the applicants.'
Despite this the $12m budget amount in 2024 was around 38 percent of what was projected for that financial year.
'Cabinet offered no reason for this decision. There is no evidence that Cabinet undertook a Treaty-compliant balancing exercise as part of this decision.
'This context highlights the serious nature of the [Treaty] breaches by the Crown.
'We find that the Crown has not acted reasonably or in good faith. It has not actively protected Māori interests in relation to this important taonga and not exercised good government.'
The tribunal report said funding caps and lawyer rates could prejudice claimants by raising the risk senior counsel walked away from helping.
'We are extremely concerned at such a rudimentary approach being taken to applicant funding under the Act.'
In another part of the report, tribunal members observe: 'The only inference we can draw is that this was a purely fiscal decision, but one made without any evidence that the additional funding would affect the economy, not any apparent consideration of how it would impact Māori rights and interests.
'This is not a Treaty-compliant balancing exercise,' the wrote, then concluding the Crown's decision 'breached the principles of partnership, good government, and active protection.'
Tribunal members seemed perplexed at how the former Te Arawhiti officials had been unable to anticipate – even though it should have known in 2021 and 2022 – the surge in claimant costs as MACA Act claims moved to the court action phase.
'The Crown should have been on notice from this point that the High Court pathway was gathering momentum which would likely result in a significant increase in demand on the funding scheme.'
The agency also had a significantly flawed modelling system to calculate how much would be needed each month, ignoring that some claimants would be involved in more than one case with overlapping Takutai Moana interests.
The late identification of the problem had a significant impact, the report says, and the time pressure it put officials under in 2024 'was created by the Crown failing to properly identify earlier the growing pressure on the funding scheme.'
The tribunal reiterated its concern over the lack of progress on the alternative Crown Engagement Pathway, in which 387 applications across 20 different coastline areas seek direct negotiations with ministers via Te Tari Whakatau.
There has been no successful determination over the years and no chance now for applicants to seek financial assistance 'The Crown Engagement Pathway is effectively suspended at present.'
It had advice for the Government for future funding decisions: 'When making decisions, the Crown cannot only consider fiscal matters. It must also consider, in good faith, Māori interests and the potential impacts of any decisions on Māori.
'Such decisions should not be made in isolation.'
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
Scoop
an hour ago
- Scoop
New Analysis Details Government Annual Gift Of $119m To Multinational Gambling Company
Greyhound Racing New Zealand has released new analysis detailing the extent to which the Government is financially supporting a multinational gambling giant. It comes as the Government is expected this week to pass the Racing Industry Amendment Bill into law, creating a digital monopoly on gambling for Entain. The analysis, prepared by an independent consultant, details the financial help required for Entain to meet its funding guarantee of $150m per year to the racing industry. The funding guarantee, combined with a guarantee to retain approximately 450 TAB staff until June 2025, were set under the terms of the agreement when the TAB's betting business was outsourced to Entain in 2023. The analysis estimates in dollar terms the value of the Government's support to bail out Entain so it can limit its losses in meeting the terms of its deal until 2029. The passage of legislation to block New Zealanders from gambling offshore will boost Entain annual revenues by at least $75m per year. The retention of gambling on Australian greyhounds after the ban comes into effect, will preserve Entain gross betting revenues of approximately $44m per year. Without these actions by the Government, Entain would be faced with an estimated revenue deficit of $26m per year. Greyhound Racing New Zealand CEO Edward Renell said: 'The Government has chosen to bail out a multinational gambling company at the expense of ordinary Kiwis. 'It will shamelessly pass laws and create digital monopolies so Entain can meet its funding guarantees and obligations to private shareholders. 'Entain won't need to compete to win new revenue as it was brought in to do. It will be gifted it by banning Kiwis from using non-Entain betting providers and retaining gambling on Australian greyhound racing. 'The decision to keep taking money from Australian greyhound races, but strip thousands of regional Kiwis of their livelihoods and passion, is depressingly cynical and hypocritical. 'Gross income of $44 million dollars each year will now be sliced up between the Government, Entain and the equine codes and not go to the thousands of trainers, owners, and breeders involved in greyhound racing. 'It's a reverse Robin Hood. The Government is taking money from the provinces to save face on a bad deal and keep the money flowing into Entain, thoroughbred and harness racing.' Notes: Timeline of Entain – TAB deal: March 2023: TAB and Entain agreed to enter a strategic partnership agreement where TAB has delegated its betting and wagering functions to Entain. May 2023: The partnership was approved by then Racing Minister Labour's Kieran McAnulty, outsourcing TAB's monopoly betting operation to Entain for 25 years, a UK-listed multinational. 50% revenue share between Entain and the TAB. May 2023: TAB sought a variation to its authorisation of its arrangements with Tabcorp to reflect strategic partnership with Entain. June 2023: The partnership officially started on June 1, 2023. Entain Guarantees under the terms of sale: Entain provided TAB $150 million upfront a with a guaranteed $150 million for the first five years. $10 million sponsorship for racing carnivals. On passage of the Racing Amendment bill into law: $100 million payment from Entain, $80 million to be shared between thoroughbred and harness racing Entain committed to no forced redundancies for first 24 months of the agreement, due to expire this month (June 2025). Book value of Entain's TAB licence assets, if the Racing Amendment legislation goes through: According to Entain's March 2025 annual report, the estimated value of the New Zealand TAB licence assets was $2.7 billion NZD, including the potential introduction of the legislation. About GRNZ Greyhound Racing New Zealand is the governing body for greyhound racing in New Zealand and provides governance, support and assistance to the affiliated clubs in the sport of greyhound racing. The decision to end greyhound racing has significant economic and social consequences. The sport provides 1,054 full-time equivalent jobs and contributed $159.2 million to the economy in FY23. The Government announced on 10 December 2024, an intention to legislate to ban greyhound racing in New Zealand from 31 July 2026. Visit for more information.
NZ Herald
4 hours ago
- NZ Herald
PM Christopher Luxon open to scrapping regional councils amid RMA reform
Prime Minister Christopher Luxon says he wants to explore the possibility of scrapping New Zealand's regional councils as the Government reforms the Resource Management Act. NZ First minister Shane Jones told a local government forum last week his party does not see a compelling case for maintaining regional government.
NZ Herald
5 hours ago
- NZ Herald
Prime Minister Luxon, Peters to speak on US-Iran tensions as NZ sends plane to Middle East
Prime Minister Christopher Luxon has yet to make his position on the US attacks on Iran known as it prepares to send a defence force plane to the Middle East. Yesterday, Foreign Minister Winston Peters said the Government was still assembling 'the facts' of the US attack on several Iranian nuclear sites before stating New Zealand's view. Luxon will speak on Newstalk ZB just after 7.37am when he calls in from Europe, where he is about to attend the Nato summit in the Hague. You can listen to the interview live from the below link: Earlier, Labour Party defence spokesman Peeni Henare, who supports the Defence Force deployment, called for the Government to declare the US bombings are in breach of international law. had carried out a 'very successful attack' on three Iran nuclear sites. Trump said the objective was to put a stop to the nuclear threat posed by the world's 'number one state sponsor of terror', and accused Iran of being responsible for the deaths of hundreds of thousands of people. He claimed there are 'many targets left', and if peace was not achieved, the US would target them with 'speed, precision and skill'. Speaking from the Whenuapai airbase yesterday alongside Defence Minister Judith Collins, Peters said a C-130J Hercules plane containing Defence Force and Foreign Affairs personnel would take off from Whenuapai today and would be based in the Middle East. The pair's statement didn't clarify where the Hercules would be based, nor the range of personnel travelling. It was expected to take several days to reach its destination. The deployment was intended to aid evacuation flights should the airspace around Iran and Israel become less restricted, which could take 'weeks', according to Peters. He noted discussions with commercial airlines were ongoing, but repeated his advice that Kiwis should leave the region if they could do so safely. All New Zealanders in the Middle East, not just in Iran and Israel, were urged to register on SafeTravel. New Zealanders in Iran and Israel needing urgent consular assistance should call the Ministry of Foreign Affairs emergency consular call centre on +64 99 20 20 20. About 180 New Zealanders had registered as residing in either Israel or Iran, much higher than reported earlier this week. Peters said people were 'coming out of the woodwork' amid ongoing attacks.
