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Opinion piece by Prof Roger Bowden
3 July 2010
The foreshore smell has become deafening

Just in case you hadn’t heard, it’s now official; under the coalition Government’s proposed Foreshore and Seabed Act Mark II, customary title is recognised as ownership. No longer is ‘nobody is to own’ the foreshore and seabed, the way it was sold in the consultation document. Instead,  iwi and hapu will have the right to claim a new form of title , which will sit over and above the residual public domain ‘in much the same way that fee simple title sits over the Crown’s radical title to land’, in the words of the Attorney General. From the economic point of view, that amounts to ownership. I am sceptical that it can even be reconciled with the weaker notion of public domain, which is left as an undefined residual and as such, subject to constant encroachment from activities and exclusions possible under the new title. So much for the reassuring words about an undefined ‘public access’ right.

This is a change of constitutional character. It advances by Crown proclamation the economic interests of one specific group of New Zealanders at the expense of the remainder. It is not something required by any reading of the Treaty of Waitangi unless you are one eyed enough to think that the original ‘estates’ of Maori were envisaged to encompass what happens 12 miles out to sea. ‘Fisheries’ perhaps; but we all thought compensation for any loss of exclusivity had already been offered for that through the Sealord deal and the quota allocation.

Constitutional changes, official or unofficial, are not to be taken lightly. To be sure, the present government has muddled enough on other fronts, notably the emissions trading scheme, a good enough idea in principle but an operational disaster in practice[1]. The difference is that the ETS can be suspended with a stroke of the pen by whatever government succeeds the present one. It does not take too much political or behavioural insight to realise that Foreshore and Seabed Mark II will be irreversible. That is why it is constitutional in character. To be sure, so was the Seabed and Foreshore Mark I from the previous Labour government. But that simply recognised a long standing convention with well established legal precedent.

For make no mistake, Mark II creates a valuable property right. It will allow qualifying iwi or hapu to build marinas, fish and mussel farms, or wave platforms for generating electricity, in practice with little control or recourse on the part of  local authorities. Iwi business interests will be able to mine iron sands, coltan, or whatever else is revealed in the fullness of time. And it will endow iwi or hapu with a moral case for access fees or cultural deprival compensation for the nationalised minerals (gold, silver, uranium, and above all, oil in prospective provinces like the East Cape). If that doesn’t work, then under the proposed power of veto, they can hold to effective ransom any party that does want to do such things.  Money for jam. Or as an economist might put it, deadweight economic rent.

That being the case, there will arise a multitude of claimants, not just a few, as Mr Key seems to think. A look at the Maori Land Information Base suggests claims over most of the harbours and associated coastline on the west coast, practically all of East Cape, and strategically sited bits and pieces in some popular places elsewhere.

The proposed Act is silent as to what is to happen when intervening land is held by non iwi. Even the basic geometry is unresolved. Twelve miles offshore in which direction: normal to the coastal tangent? A claim centred on the Mahia peninsula could end up covering much of Hawkes Bay, similarly for Coromandel. Even in places like Raglan, one can imagine a good bit of pressure to submerge the interests of other New Zealanders. All this, before one even starts to consider the significance of removing the contiguous land requirement. It’ll be a line up, just as it has been for the Waitangi Tribunal. Delightfully profitable for the legal profession, but immensely damaging for our nationhood.

Thus for Mr Key to claim limited scope is just hand waving in the hope that no one will notice: all too insouciant to be true. It’s another Waitangi gravy train in the making, and as it runs its course, rules will be bent. For one thing, NZ judicial decisions have in recent years leaned towards judicial activism at the expense of legal precedent. As a foreshadowed piece of legislation, F&S Mark II will be crucially incomplete, leaving much to be resolved in terms of common rather than statutory law. Notions such as ‘exclusive use and possession of the area’, for instance, do not stand up to rigorous scrutiny. In practice, no part of the NZ coastline satisfies such a requirement, tautologically so if it refers to the foreshore and seabed itself, which has been in Crown ownership. So once again, the rules will have to be bent, and the bent ruler will be used to support the emergent common law.

Alternatively, the legislation will empower the Government of the day to simply gift customary title, in which case there are no rules for consistency and fairness to worry about at all. The Government has talked in terms of ‘criteria’ for direct government award of customary title, but is strangely unwilling to write these into the proposed statute. The candy will go to whoever can mount the noisiest hikoi, or help to break a coalitional deadlock in parliament.

If all this is starting to smell, one might reflect that foreshores are often smelly places. It can also be quite toxic, as the unfortunate residents of St Michel en Grève in France discovered last year.

In that respect, Seabed and Foreshore Mark II is going to transfo rm a ‘weeping sore’, as Mr Key likes to put it, to an open wound.  It’s that way already with many National Party voters who put them into power on the legacy of Don Brash and the Orewa speech, a courageous man vilified in the media for saying something that needed to be said. In political life, there is sometimes a fine line between leadership and betrayal, but there is a line nonetheless. Stepping over that line risks years in the wilderness. That is why the Government is rushing things through ahead of the next election while the official opposition is still adrift and effectively leaderless.

But cometh the hour, cometh the man. My money is on a resurgent Gandalf style ‘Winston the White’, no longer ‘Winston the Grey’. All he needs to do is change his party’s name from ‘New Zealand First’ to ‘One New Zealand’. He’ll be kingmaker for years to come, even if their economic policy is a few bricks short of a load. I’d go for Ricki Herbert, myself. At least he seems to know what he’s doing.

[1] Inherent problems of certification and liquidity were pointed out in my 2008 book Economic State of the Nation.  It’s only matter of time before even the European markets are hit by fraud. Now that we are virtually on our own, the problems have become overwhelming. The market will be hopelessly dysfunctional.

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