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Michael Coote
Michael is a freelance writer and financial journalist based in Auckland.

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NZCPR Guest Forum
The Great Foreshore and Seabed Sellout
Michael Coote
31 July 2010

The National-led government’s attempts to sanitize its controversial “remedy” to the Foreshore and Seabed Act (2004) grow ever more curious and contradictory by the day. It is quite clear that the government and Maori interests already do not see eye-to-eye over what the proposed replacement legislation will mean in practice, and that the government cannot hold a consistent line when explaining to the wider public what will happen when Maori tribes lay claims to title over the foreshore and seabed.

Based on these inconsistencies, there is no reason for the public to have any confidence in the government’s proposed “solution” to a “problem” that only it, vested Maori tribal interests, and the odd visiting United Nations bureaucrat seem to think exists. Outside of these limited and self-interested parties, very few people are heard to argue that the present Act needs fixing.

The foreshore and seabed is not a traditional Maori concept

One of the glaring anomalies concerning the proposed replacement legislation is that it will open up the foreshore and seabed - as legally defined in the Foreshore and Seabed Act 2004 - to sweepingly comprehensive Maori tribal claims of permanent and inalienable customary use and title. Yet as defined in law, the foreshore and seabed is a Western legal concept, and not anything that could arguably be described as a traditional Maori concept as understood in 1840 at the signing of the Treaty of Waitangi.

From the government’s own consultation document, published with little time allowed for non-Maori public submissions, the foreshore and seabed is defined as follows:

Foreshore and seabed

In section 5 of the Foreshore and Seabed Act 2004, the foreshore and seabed means the area between the line of mean high water springs on its landward side and the outer limits of the territorial sea (12 nautical miles) on its seaward side. The foreshore and seabed includes the air space and water space above the land, and the subsoil, bedrock and other matters below.

In practical terms, it is the seabed and the ‘wet’ part of the beach that is covered by the ebb and flow of the tide. It does not include the dry land on the beach next to the intertidal zone. It includes the beds of rivers that are part of the coastal marine area.

Mean high water springs (MHWS)

This is the inland boundary of the ‘foreshore and seabed’ as defined in the Foreshore and Seabed Act 2004. The 2004 Act does not define MHWS. ‘Spring’ tides are the highest tides and occur twice a month.

(Reviewing the Foreshore and Seabed Act 2004 Consultation Document pp. 49 – 50)

No reasonable perspective on customary Maori tribal uses or ownership of the foreshore and seabed would construe these in terms of the all-embracing legal definition, yet the government is proposing to open up this vast area to potentially limitless claims by Maori coastal tribes under the terms of a purely Western conception.

The only caveats are that foreshore and seabed already in private title (about 12,500 such titles, of which around 3,000 are held by Maori) will not be affected, that the public will continue to have access for recreation, fishing and navigation, and that existing finite permits for use such as for marinas, aquaculture, or mineral exploration will continue until expiry.

Otherwise it is open slather for claims ranging from the average high tide mark, including coastal riverbeds, out to the 12 nautical mile limit and including all airspace above and seabed below. No wonder potential Maori claimants are smacking their lips at the prospects lying before them. They are being gifted the biggest land (and sea) grab in New Zealand’s modern history.

Short of donating New Zealand’s entire landmass as well, there will never be a better deal for Maori than what the government has determined upon doing, even if the price to the rest of society includes violation of the government’s duties of good stewardship of Crown assets and trampling on the rights of all other New Zealanders in the process.

The government has no idea how extensive Maori claims will be

The government through its conflicted minister Chris Finlayson (both Attorney General and Minister of Treaty Negotiations) has taken a minimalist line on how much of the foreshore and seabed Maori will lay claim to under replacement legislation, yet it is clear Maori coastal tribes are taking a maximalist interpretation.

Mr Finlayson has guesstimated that about 10%, or 2,000 km, of the coastline will be affected, but he has no objective basis for making this statement. Claims could go in for much more than that. The minister picked the East Coast and the Bay of Plenty (Ngati Porou and Te Whanau a Apanui tribes), and the Far North (ten tribes) as likely places.

Despite Mr Finlayson’s minimalist view, Maori public announcements of intended claims are flowing in thick and fast.

Northland tribes have stated they are after at least Ninety Mile Beach and Cape Reinga, but that a wider claim could range from the Mangonui Harbour up to the Cape and then down around to the northern Hokianga Harbour, or more simply the entire far North coastline, if Ngati Kahu tribal mouthpiece Margaret Mutu is to be believed.

The foreshore and seabed from New Plymouth to Motunui is also to be claimed (Te Atiawa tribe), with another six tribes in the Taranaki area having coastal boundaries and also likely to put their hands up.

Maori Party MP Te Ururoa Flavell has added the Coromandel (Hauraki tribes), and we haven’t even started on the South Island yet, let alone metropolitan Auckland’s lengthy coastline and the Hauraki Gulf.

Mr Finlayson’s 10% figure looks ludicrously small and reveals how little he understands how the process is likely to unfold and of which he is the principle architect. Possibly Mr Finlayson is a fool, but if he comprehends something like the true extent of the claims he has been seeking to minimize for public consumption, he is perhaps more a knave for talking them down in order to trick the vast majority of New Zealanders who are not coastal Maori into passive acquiescence.

Playing with words

In the run up to the supposedly final deal struck between the National Party, the Maori Party, and the Iwi Leadership Group on what the new foreshore and seabed deal would contain, some apparently innocent-sounding words were injected into the bargain that will surely come back to haunt all New Zealanders. The first sneaky change involved dumping the phrase “public domain” and changing it at Maori behest to “public space”. The word “domain” obviously implied some kind of ownership interest by the public in the foreshore and seabed, and Maori weren’t having a bar of that.

One can see why when it is considered that in the government’s consultation document there is no mention of any public interest to defend against Maori foreshore and seabed claims. The omission of a defendable public interest is utterly scandalous and betrays how the government’s foreshore and seabed deal is intended to be a walkover for Maori to benefit from at the expense of the general public as represented in the existing Crown interest, but obviously the Maori Party and Iwi Leadership Group wanted matters made utterly explicit as to the inbuilt advantage of Maori claimants by substituting “space” for “domain”.

The second extremely dangerous wording change was introduction of the concept of “universal recognition” or mana tuku iho, into the deal at the last minute. Mr Finlayson has tried to explain this change away by writing in the Dominion Post (July 15) that the concept “will simply provide recognition that a certain iwi or hapu has its roots in a certain area of the coast. This will make it easier for local authorities and the Conservation department to meet their statutory responsibilities to consult, because they will know who they need to consult with.”

Of course, given that National proposes to lower the high Foreshore and Seabed Act 2004 threshold at which Maori coastal tribes can succeed in claims over the foreshore and seabed, there will be a stampede by tribes to register for their “universal recognition” as the opening shot in the claim process. This “universal recognition” concept can be relied upon to open up the entire coastline not already in private title to Maori territorial claims, which is why it was a die-in-the-ditch issue for Maori negotiators to fight for. The government was incredibly stupid and irresponsible to agree, and in doing so betrayed the public interest.

Note also the implication for the 12,500 existing private titles to the foreshore and seabed: under “universal recognition”, Maori coastal tribes will get a say over this private property if it falls within their tribal area by way of the statutory right to consultation by local authorities and the Department of Conservation. That must come as an unpleasant shock to the owners of such private property.

Additionally, the “universal recognition” concept and the force it will have in law imply that Maori coastal tribes are at least quasi-public entities, when the truth of the matter is that Maori tribes are all strictly private interests, and vested interests at that.

One of the standing falsifications within the whole Maori grievance industry in general, but also within the foreshore and seabed issue in particular, has been a determined attempt to obscure the truth that Maori tribes are purely private interests, because the superior power and privilege these tribes are acquiring as private interests over all other interests – both private and public – in New Zealand is utterly odious and oppressive to our society.

The instructive case of the first (and only) prior settlement

Ngati Porou signed a foreshore and seabed settlement agreement over the East Cape under the terms of the Foreshore and Seabed Act 2004. It is instructive to compare what the tribe and the government respectively believe about the scope of this settlement in relation to what replacement legislation will permit. Mr Finlayson told Parliament, in answer to a question, what follows:

Hon David Parker: “Are the rights that Maori hapu or iwi may obtain under customary title claims under the Government’s preferred approach similar to those achieved by Ngati Porou in their agreement with the previous Labour Government?”

Hon CHRISTOPHER FINLAYSON: “They could be. I have studied very closely the Ngati Porou agreement, which some on the member’s side of the House have characterised as being an agreement under the Foreshore and Seabed Act. In fact, those rights are not the same; they go beyond those provided for in the Act. In analysing the awards and the tests I have endeavoured to look at what is currently there under the 2004 Act and under the Ngati Porou agreement, then to take that to customary title. In this respect it is different: customary title will be a species of property right. It will not be able to be sold, public access will be retained, and there will also be a right to develop.”

Thus Mr Finlayson thinks that the Foreshore and Seabed Act 2004 offers extensive rights and benefits to Maori and that a tribe like Ngati Porou can already secure even wider rights than the Act permits. But that is not enough, it seems, for Mr Finlayson, who wants to create an additional customary title as well in order to go beyond what the supposedly flawed Foreshore and Seabed Act 2004 provides for.

And what do Ngati Porou have to say?

In July, 2009, the New Zealand Herald quoted Ngati Porou spokesman Matanuku Mahuika as saying, “there was potential for an improved settlement if the Government did decide to make changes to the law. One aspect that might change was the ‘onerous’ process Ngati Porou had to go through to prove territorial customary rights in the High Court.”

According to a more recent New Zealand Herald story (June, 2010) from the period before “public space” was substituted for “public domain”, Ngati Porou leader Apirana Mahuika said on National Radio:

“The question is do we want the Foreshore and Seabed Act to remain as it is now with all the limitations on it and all the rights in favour of the Crown without taking cognisance of the rights of Maori."

“Which is the better option? The better option is the public domain because then we can do something about it in terms of negotiations with the Crown about our iwi position.”

Thus Ngati Porou have a maximalist view of where the revised foreshore and seabed legislation will take them, with the particular advantage, from their perspective, that the Crown’s rights (ie., the rights of the public interest) will be abolished and Maori rights will prevail unopposed.

Ngati Porou have been opposed to oil prospecting offshore from East Cape. In relation to their opposition and the government’s proposed foreshore and seabed law rewrite, the Stuff website’s Business Day ran a story entitled Foreshore law change set to give iwi mining veto (June 16, 2010), which stated the following:

Ngati Porou believes new rights under the foreshore and seabed legislation will give it greater powers to control petroleum mining.

The East Coast iwi is expected to seek customary title over the foreshore and seabed within its area under the new regime. This would strengthen its ability to veto any mining of Crown-owned minerals, including petroleum, within 22.2 kilometres of the shoreline.

Ngati Porou's territory includes part of the 12,000sq km Raukumara Basin, where the Government has just given Brazilian company Petrobras a five-year permit for petroleum exploration.

Ngati Porou chairman Apirana Mahuika said the Petrobras exploratory mining was of great concern to Ngati Porou, especially given the BP oil leak in the Gulf of Mexico.

Its current deed of settlement gave it some rights to approve developments, but the "new regime would give us better instruments legally to counter mining of the foreshore and seabed. It would give us greater protection for future mining and exploratory mining in our area."

Petrobras' exploration permit will not be affected by any award of customary title because all existing permits and licences will be able to run their course. However, subsequent permits to actually mine in the area could require Ngati Porou signoff if the mining areas infringe on customary title areas, which will stretch up to 22.2km out to sea.

Thus Ngati Porou’s position is very clear – the government’s replacement deal for the Foreshore and Seabed Act 2004 is much better for them than what they managed to get under and in excess of the existing Act and makes it much easier to succeed in claims to the foreshore and seabed. So good is the new deal in fact, that Ngati Porou expects the boundary of the new territorial title it will seek to run out as far as the 12 nautical mile limit (22.2 km). This is clearly more than Ngati Porou got in their generous settlement under the Foreshore and Seabed Act 2004.

A key question in all of this is whether the New Zealand public realises as yet that these new Maori costal tribal territories will, quite literally, encompass “the area between the line of mean high water springs on its landward side and the outer limits of the territorial sea (12 nautical miles) on its seaward side,” and include, “the air space and water space above the land, and the subsoil, bedrock and other matters below.”

This misapplication of a Western legal concept to Maori traditional customary use and title is way more radical than what the National-led government has been dishonestly telling the public in trivialising what is planned as a matter of overdue justice for Maori while preserving the right of the public to access beaches for a swim and sunbathe.

Can the general public have any faith in the National-led government to defend its legitimate existing interests in the foreshore and seabed?

The short answer to this question is a resounding “No”. The way the government has structured the deal around relinquishing Crown title to create “public space” guarantees destruction of the legally defendable public interest in the foreshore and seabed, and the legal definition of that area ensures that Maori claims will be vast and sweeping, further augmented by the Trojan horse concept of “universal recognition”.

The government itself – principally in the persons of Prime Minister John Key and Attorney General/Minister of Treaty Negotiations Chris Finlayson - has made repeated statements that have the appearance of being calculatedly false, misleading and deceptive about how minimal the changes that will flow through will be. The public should not be reassured by the government’s soothing words, and instead should be up in arms to defend its legitimate and abiding interests from the Maori foreshore and seabed grab.