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5 July 2009 Controversy, Conservation and Consultation

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Last week a controversial review of Labour’s 2004 foreshore and seabed legislation was published. It recommended that the Act be repealed so that Maori can take up their customary rights to the foreshore and seabed – or be compensated for them.

One can’t help but get the “here we go again” feeling. Billions of dollars of taxpayers’ money will yet again be up for grabs in windfall gains for Maori, depending on how the National Party reconciles this matter. On one hand is its crucial governmental responsibility to protect an important Crown resource for all New Zealanders, but on the other is its political desire to stay onside with its Maori Party coalition partner.

This issue hinges on the fact that under the system of British common law that was introduced in 1840 when the Treaty of Waitangi was signed, ownership of the foreshore and seabed was automatically vested in the Crown. That means that any other rights – real or otherwise – were extinguished. Maori, however, are claiming that because a law to specifically extinguish “customary rights” to the foreshore and seabed was not passed by Parliament, they remain the rightful owners.

With an issue that is so important, it is vital that the facts of the matter are clear.

The foreshore was traditionally regarded as the area between the mean high water spring tide mark and the mean low water spring tide mark, with the seabed being the land permanently covered by the sea stretching out to New Zealand’s exclusive economic zone. Ownership of the foreshore and seabed has always been vested in the Crown except in those few cases where riparian rights had been granted including local authority holdings and former Harbour Board lands. This situation was consistent with the Queen’s Chain - a 20 metre esplanade reserve that is vested in the Crown for the enjoyment of all New Zealanders – a concept that also dates back to 1840.

When the Treaty of Waitangi was signed in 1840, Article I gave New Zealand a sovereign Queen, Article II created private property rights, and Article III introduced British common law. Since under British law, “the sea from high water mark to a point three miles out belongs to the Crown”, from that time on, New Zealand’s foreshore and seabed was deemed to be in Crown ownership - along with other common resources such as air, water, the Queen’s Chain and so on.[1] As a consequence, any customary rights to these resources were extinguished by the Treaty. In accordance with legislative drafting tradition, statutes do not state what has already been extinguished, although a 1963 Court of Appeal ruling in the Ninety Mile Beach case, clearly affirmed Crown ownership of the foreshore and seabed.[2]

However, in 1997 South Island Maori lodged a foreshore and seabed claim with the Maori Land Court over a marine farming consent dispute with the Marlborough District Council.[3] At the time the Crown argued that the Maori Land Court had no jurisdiction over the foreshore and seabed and tried to stop the claim. But it went ahead. When the Maori Land Court found in favour of the Maori claimants, the Crown appealed it to the High Court. They won the case, with the Judge ruling that the foreshore and seabed were beneficially owned by the Crown and that the Maori Land Court had no jurisdiction in this area.

However, the Maori claimants appealed the case to the Court of Appeal and, in an extremely controversial decision in June 2003 ruled that the Maori Land Court could hear customary title claims to the foreshore and seabed. In reaching their decision the panel of five Judges led by Chief Justice Sian Elias, overturned settled law including the earlier 1963 Ninety Mile Beach landmark judgement by their own Court of Appeal.

Such Appeal Court reversals are very rare and are hugely disruptive since they throw into disarray all of the case law based on the original decision. Some commentators at the time remarked that the Court of Appeal was simply following the direction of the then Attorney-General, Margaret Wilson, to develop an “indigenous law”. 

As a result of the Court of Appeal’s bombshell decision, the Labour Government essentially had three choices: to appeal the decision to the Privy Council, to let Maori have their day in Court, or to legislate. The most logical choice would have been to appeal the case to the Privy Council, but since they were in the process of abolishing access to the Privy Council, they ruled this option out. The second course of action would have been to allow the Maori claimants their day in court where they would have had to prove continuous, uninterrupted use of the foreshore and seabed since 1840. Instead they chose to legislate.

Initially it was thought that Labour would re-assert Crown ownership of the foreshore and seabed in the same way that they had re-asserted Crown ownership over oil and gas reserves following a recommendation by the Waitangi Tribunal that Maori had a legitimate claim. However, as a result of an outcry by Maori that re-asserting Crown ownership would confiscate their property rights, the 2004 Foreshore and Seabed Act, with its concept of “public domain” and management rights for Maori, became law.

The storm of Maori protest at the time provided a platform for the formation of the Maori Party and the repeal of the foreshore and seabed law has remained one of its key objectives.

After the 2008 election, the National Party approached the Maori Party with the offer of a coalition arrangement. As a result a review of the Foreshore and Seabed Act was duly agreed.[4] The chosen review panel consisted of former Waitangi Tribunal Chairman Eddie Durie, Maori legal issues specialist Richard Boast, and the Dean of Maori at the Christchurch Polytechnic Hana O’Regan. Such personnel were always going to produce a report strongly biased in favour of Maori. In fact some submitters to the review asked, given that the process was so biased in favour of Maori, who was going to represents non-Maori in this extremely important matter?

What the Review has essentially recommended is the overturning of Crown ownership of the foreshore and seabed in favour of Maori ownership. It assumes that customary rights have always existed and that if anything compromises those rights, then compensation must be paid. This is the matter that the National Party is now considering. If they even consider going along with the recommendations of the Review, it would result in the wholesale sell-out of the rights of access to the beach and the sea of non-Maori New Zealanders. This is not only racist and divisive, but it would signal a massive abuse of the democratic process since if National had campaigned during the election on a separatist policy of giving control of the foreshore and seabed to Maori, it would not have been elected.

Maori do not own the foreshore and seabed. They have never owned the foreshore and seabed. The moment the Treaty was signed, the Crown became the owner of the foreshore and seabed for the good of all New Zealanders. It is the responsibility of the government to ensure that such common good resources stay in Crown ownership for the benefit of future generations of New Zealanders.

Conservation

This whole debacle over the foreshore and seabed provides a stark example of how governments can find themselves so involved in appeasing vocal minority groups that they all too often marginalise the majority in the process. Unfortunately this is also a common occurrence in the realm of conservation, where over the years environmental activists have successfully railed against private sector involvement in conservation efforts, to the detriment of all New Zealanders.

This weeks’ NZCPT Guest Commentator is regional councillor and conservationist Gerry Eckhoff, a high country farmer and former MP who has long advocated private sector involvement in the preservation of endangered species. He explains:

“The DoC Estate is the place where our land goes to die; proclaims a billboard north of Roxburgh. The Lindis Pass Scenic Reserve in Central Otago contains a truly unique tussock landscape which is slowly but surely dying due to neglect. This once vibrant and productive area had long ago been turned into a “protected natural area”, administered by the Department of Conservation. The colour grey now replaces the tawny brown of the tussock grassland as this landscape slides silently into the death throes despite the “protection” of the Crown. The removal of stock (sheep and cattle) was deemed by DoC to ensure the survival of the indigenous vegetation. They were wrong…. again.

“The Ahuriri River, home to the highly endangered black stilt flows nearby. The Black Stilts’ survival depends on the removal of cattle from the nesting area - opined the Department, so the cattle were removed. Numbers of the stilt crashed until somebody from DoC finally understood that the Black Stilt depended on the cattle dung beetles for food. Something the locals had known for years.

“These two examples highlight the “we the Crown know best attitude” and the public’s entrenched belief that the survival of the species depends on production and conservation being mutually exclusive. The evidence is increasingly showing that far from being mutually exclusive the two are in fact mutually dependant. With money and expertise from the productive sector there would be opportunity to seek to preserve the many values we all share”. To read Gerry’s full article click here >>>

Consultation

And finally, in spite of the Select Committee reviewing the Emissions Trading Scheme having not reported back on their findings, the Government is pushing ahead with its commitment to the disastrous Kyoto Protocol by calling for public submissions on New Zealand’s greenhouse gas emissions reduction target for 2020.

Environmental groups have been very active in calling for their supporters to send in submissions proposing massive cuts to our emissions targets, asking them to attend the nation-wide consultation meetings, and to email Ministers.

If you are concerned that greenhouse gas emissions reduction targets will damage to the economy - while doing nothing for the environment - then I would urge you to have your say. Full details regarding submissions and meeting can be found here >>> 
(All MP email addresses can be found on the NZCPR website here >>>)

This week’s poll asks: Do you believe New Zealand’s foreshore and seabed should remain in exclusive Crown ownership and control? Go to poll >>>    

FOOTNOTES:  

1. Sir Apirana Ngata, The Treaty of Waitangi
2. NZPA, Legal Background to Foreshore and Seabed Review
3.Stephen Franks, Maori Coastal Claims: Judicial Activism or Judges’ Duty?
4. Department of Justice, Ministerial Review of the Foreshore and Seabed

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