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Anthony Willy

The Foreshore and Seabed

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The way to hell is paved with good intentions and that is proving to be never more true than the legal circus which surrounds the interpretation of the Marine and Coastal area Act 2011.

The Court of Appeal has released its decision in the appeals from the judgment of Churchman J. in which he introduced into the jurisprudence arising from this legislation the oxymoronic notion that there is such a concept as “shared exclusivity” when it comes to historic Maori land use surrounding the foreshore. Applying plain English, a use is either shared between one or more persons or it is exclusive to a person or group. It cannot be both, but that is no longer the law in New Zealand relating to this Act of Parliament according to the High Court and now the Court of Appeal.

It will be recalled that this particular controversy arose out of the passing of the Foreshore and Seabed Act following the Court of Appeal decision in the Ngati Apa case which overturned the long standing common-law decision in the Wanganui Riverbed claim that private rights, Maori or otherwise do not survive the acquisition by the Crown of what is known as radical title to the foreshore and seabed. It will be recalled that in most instances (but not all) there existed the Queens chain of twenty-two yards above mean high water mark. In the Ngati Apa case however the Court left the door open to such claims. There had been cases in both Australia and Canada  dealing with claims to customary rights the outcome of which is both confusing and unhelpful. This confusion was exacerbated by the antics of the Waitangi Tribunal in encouraging Maori groups to claim such rights pursuant, it was said to the 1840 document ceding sovereignty of New Zealand to the Crown but protecting Maori rights in a number of respects. It became obvious that attempting to reconcile  such earlier rights with contemporary life in New Zealand is extremely difficult given the multiple uses to which the foreshore is now put; recreation for all, fishing, some mining etc. All of which activities are open to persons of any ethnicity. In 2004 the then Labour Government of Helen Clarke recognising this insoluble problem with its attendant danger of mischief making. Her government  put an end to the debate by enacting the Foreshore and Seabed Act which vested the foreshore and seabed in the Crown while still leaving open the remote possibility that a Maori family could claim rights if it could  prove that they had carried out customary practices and occupation in an area of the coastline uninterrupted since 1840. No claims were made in the courts under this act down to the time it was repealed by the Key National Government in 2011. There was however a good deal of angst and protest in Maori quarters along the lines that the 2004 Act removed their surviving rights preserved to them in 1840. Whether actuated out of genuine concern to right a wrong or to placate the Maori lobby on whom it was dependant in Parliament the Government passed the legislation, which is the subject of theses proceeding.

In the appeal before the Court which concerns a tiny area of land along the coast opposite White Island there are seventeen parties, most of who cannot agree among themselves as to who is entitled to what.  They are represented by twenty- four lawyers. The judgments in the Court of Appeal alone run to 447 paragraphs of which the principal judgment of Miller J. occupies 351 paragraphs. In the result the court divided two to one with Miller J. in the minority and all three judges, for different reasons disagreeing  with Churchman J. on two important issues. All of this, mostly funded by the taxpayer will be sent back to the High Court for Churchman J. to hear further evidence and apply the court’s rulings with the almost certain prospect that the case will end up in the Supreme Court some years down the track.

One may well ask what is it that is so difficult about the 2011 legislation which requires such a massive and costly exercise in interpretation. On the face of it the wording of the relevant parts of the Act seems straightforward: S 11 provides that neither the Crown or any person can own the common marine and costal area. It protects “customary interests” and any other lawful use. The customary rights can only arise from an order of a Court. Merely asserting them is not sufficient. All rights of access and recreational use are preserved to all citizens. The area covered by the Act is that “made wet by the tide” but does not include the water itself. There is also a provision dealing with rivers 1 kilometre upstream from the river mouth. A protected customary right is a right that has been exercised since 1840, continues to be exercised and is not prohibited by law. There are then a number of exceptions relating to lawfully established activities which conflict with a customary right. Importantly such a right confers no title on the holder over the affected foreshore. Confusingly however the successful applicant does receive a “customary marine” title.

These provisions were clearly intended to provide for the exceptional classes of case where an applicant could prove an unbroken family interest, dating back to 1840 in an area of coastline which they enjoyed to the exclusion of others and accompanied by rights of use which have not been lost or compromised by subsequent legislation or Court rulings. In each case it would be a question of fact to prove those matters by reference to relevant tribal customs. Because of the integration of Maori people into New Zealand society and the increasing sophistication of that society clearly such cases would be few and far between. To put it colloquially no doubt most Maori housewives would prefer to buy their fish from a fish shop or supermarket than spend time, other than for recreation purposes trawling the sea bed for it in a place where tribal history (verbal of course) was that her forbears did so.

The judges took a different view. Recognising that it would be virtually impossible for an applicant to prove an unbroken chain of usage dating to pre 1840 Justice Miller considered it was sufficient to establish historic occupation by proving present occupation: ”Continuity (he said) does not require an unbroken chain of occupation.” All that is needed is a “substantial connection between the land and the applicant.”  Importantly however Miller J considered that where there are equally strong competing claims then an applicant cannot succeed for the obvious reason that the burden of proof even on the balance of probabilities cannot be met. The two majority judges found “exceptional difficulty” in reconciling the requirements of the Act with the necessary standard of proof of continuous exclusive occupation and use dating back to 1840. In resolving this difficulty, they decided that an applicant is not required to prove an intention to exclude others from sharing in the use of the land and in this way agreed with Churchman J’s oxymoron of “shared exclusivity.” They parted company with Miller J. in his finding that an applicant cannot succeed if there are others who also claim the historic rights of occupation and use. To take this approach the majority considered would mean that a claim could not succeed where there is proof of more than one family having use and occupation of the land. That such an approach flies in the face of the plain wording of the Act does not seem to have troubled the majority, ignoring as it does, the well-established principle of statutory interpretation, even under the current more liberal approach that where the wording of a statute is clear then the result must be in accord with the language of the statute. It is no business of the courts to approach the matter by saying that to apply the plain wording of an Act of Parliament will result in consequences unfair (in the mind of the judge) to one or more of the parties. That is to usurp the function of the democratically elected legislature and infringes the crucial doctrine of separation of powers between the Judiciary and Parliament.

As mentioned earlier this case has a way to travel through the Courts before the law is settled and there are at the time of writing 200 other cases on the court lists. The costs of this litigation are and will be enormous given that it seems different Maori families will make competing claims to the same area of the foreshore. Given that the legal costs are apparently being met by the taxpayer except for those opposing the claims (they must meet their own) costs to the applicants will not be a concern. If nothing else, this whole process will become a bonanza for the lawyers and the court lists will be cluttered by such claims for years to come. More importantly the process will create division between competing Maori families and between Maoris generally and other ethnicities. Given the uncertainty surrounding the judgments and their effect on society the only course is to return the foreshore and seabed to Crown ownership where it has resided since 1840.