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Dr Muriel Newman

Time for a Referendum on Foreshore and Seabed

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The government’s discussion document outlining their proposal for foreshore and seabed legislation was launched at the beginning of Easter.[1] The period for submissions ends on April 30th. The Attorney-General Chris Finlayson, who is leading the process, has stated that he is interested in the views of New Zealanders. Yet, because of his unseemly haste, most non-Maori have no idea that the review is underway. Considering the importance of the foreshore and seabed in the lives of all New Zealanders, this situation is both unacceptable and undemocratic.

Before we look at what the government is proposing, it is important to reflect on why we are even considering this issue – again. For most of our history, it was clearly understood that ownership of New Zealand’s foreshore and seabed was vested in the Crown. On the assumption of sovereignty by Her Majesty Queen Victoria, British common law became the basis for New Zealand’s law – just as under common law in British the foreshore and seabed was vested in the Crown, so too it was here.

In the early sixties, this issue was clarified in a landmark Court of Appeal ruling in a claim involving Ninety-Mile Beach. The Court found that the Crown owned all of the foreshore and seabed in New Zealand that was not in private hands. Acting for the Crown, the Solicitor General Mr H.R.C. Wild QC argued that “on the assumption of sovereignty by Queen Victoria, the foreshore and the islands of New Zealand… became, and has ever since remained, vested in the Crown. Most New Zealanders would believe that sovereignty came to this country by virtue of the Treaty of Waitangi… But the weight of opinion of Judges, historians and constitutional writers is that sovereignty came by settlement or annexation. Whether sovereignty came by Treaty or by occupation or annexation matters not. The important point is that sovereignty brought the common law of England.

“The legal result that the Crown contends for, namely the Crown’s ownership of the foreshore, was therefore the consequence of the assumption of sovereignty. It is for this reason that the Crown is able to contend in this case… that whatever rights the Maoris had to the foreshore by custom and usage they lost when British sovereignty was assumed. All examination of the relevant statute law shows that the Maori Land Court never had jurisdiction over the foreshore”.[2]

This was settled law. The Crown owned the foreshore and seabed and that was that. There were no issues – until a group of activist judges (including the Chief Justice) overturned that 1963 Court of Appeal ruling in a decision on the Ngati Apa case in 2003, which raised the possibility that Maori customary title in general could be converted into freehold title, which in turn could lead to Maori control of the coastline.

In overturning well-established law, this ruling created a bombshell. When un-elected judges make new law that usurps the power of a democratically elected Parliament – usually through reversing or modifying a prior court decision, nullifying a law that has been passed by Parliament, or by overturning decisions made by Cabinet – the consequences can be very serious. That was certainly the case in this instance.

Under normal circumstances, the government should have appealed the decision to the Privy Council, but since Helen Clark had just abolished access to the Privy Council, that approach was untenable. The Labour Government’s answer was therefore to legislate – and the Foreshore and Seabed Act 2004, which vested the full legal and beneficial ownership of the public foreshore and seabed in the Crown, came about.

The Act essentially extinguished the right to any other form of title to the foreshore and seabed (apart from existing title), but had no impact on customary use rights. In fact, it created two new forms of customary use rights to the public foreshore and seabed: “territorial customary rights” that depends on both the continuous use of the area since 1840 along with the existence of continuous title to contiguous land, and “customary rights” that requires continuous usage but does not specify any land ownership.

The test for territorial customary rights involves proving existing usage through the High Court. If an application is successful, Maori can negotiate “redress” with the Crown, they can create a foreshore and seabed reserve, and they can expect to have direct input into the management of the reserve. To date only Ngati Porou has successfully negotiated a deed of agreement with the Crown, but the High Court still has to confirm that the territorial customary right conditions have been met. The Government’s 2009 Budget shows an appropriation for ‘Administrative Assistance for Foreshore and Seabed Arrangements’ involving Ngati Porou of $5.9 million and ‘Contribution to Foreshore and Seabed Negotiation Costs’ of $1.389 million, so this process is not without significant costs.

Customary rights must also be tested in court – the Maori land Court for Maori groups and the High Court for any other group – as a successful customary rights order means that the applicants can carry out their customary activities such as launching waka, or collecting sand, hangi rocks, or driftwood, without needing permits under the Resource Management Act. To date, there have been seven applications to the Maori Land Court for customary right orders, but no determinations have yet been made.

During the controversy over the foreshore and seabed in 2004, the Maori Party was formed. Their goal is to repeal the Foreshore and Seabed Act 2004, in favour of ownership of the foreshore and seabed being vested in Maori. That would enable them to get control of the resources they have long desired.

The present review of the 2004 Act was part of the post-election Confidence and Supply agreement between the Maori Party and National. There was never any doubt in anyone’s mind about the outcome of the review. With the panel stacked and the meetings all organised by the Maori Party, everyone knew that the report would recommend the 2004 Act be repealed and replaced with a law that would enable Maori to get their hands on those foreshore and seabed resources they have long coveted.

What is particularly galling however is that the Attorney General Chris Finlayson, who is also the Minister of Treaty Settlements and a former Ngai Tahu negotiator, seems to believe that the only people who matter in this debate over the future of the foreshore and seabed are Maori. In the forward to his discussion document he states, that the government, “ in the months since the Panel reported, has been engaged in an extended conversation with iwi representatives and other interested parties to canvass options for an enduring solution.”

What about us? What about the vast majority of New Zealanders who don’t have coastal iwi affiliations, but do want to ensure the foreshore and seabed is kept free from exploitation by the greedy. Just last week we witnessed how Meridian Energy was forced to pay an undisclosed sum to Ngati Waewae to keep the “Mauri” or life force of the Mokihinui River happy. After the promise of payment, the iwi changed its tune from opposing the dam building project to supporting it.

This sort of blackmail happens time and time again. Why should we think it will be any different if Maori gain greater control over the foreshore and seabed?

So what is it that National has proposed in place of the 2004 Act? They have stated that they intend to replace the concept of Crown ownership of the foreshore and seabed with the notion of public domain akiwa iwi whanau. I asked Treaty expert and law lecturer David Round, this week’s NZCPR Guest Commentator, for his view on the proposals. He took issue with the words takiwa iwi whanau – “nowhere in the consultation document, does any description or definition of these words appear. It is utterly unsatisfactory that we turn the foreshore and seabed into a concept which is undefined and unknown. What will happen is that down the track some Maori claimant will be arguing that ‘takiwa iwi whanau’ actually means that Maori have some special extra rights we don’t realise right now. Undefined words are a blank cheque for whoever interprets them ~ and Maori words will, of course, be interpreted by Maori.”

In his article Riding Roughshod over our rights to the foreshore and seabed,  David then explained that “The proposal is that uninvestigated customary title… be restored, and be made able to be investigated. Customary title was considered by everyone to be very rare. But the government’s proposal means that it will be rare no longer. The proposal is, in fact, to introduce new tests as to what customary interests are. I make two vital points. One is that the definitions and tests proposed for these interests will be much more liberal than they are now or have been in the past. We can therefore be certain that customary title will be found in future when, in the past, it would not have been. Then, it is also proposed that Maori will not even have to go to court to obtain recognition of these customary interests. They could go to court if they wanted to ~ but Maori will also be able to obtain recognition of their customary interests by negotiating directly with the Crown. The document observes that such direct negotiation ‘reflects the Treaty partnership’ ~ you remember, the non-existent partnership ~ and ‘respects the mana of the negotiating group and recognises the ability of the government to address their issues, rather than relying on the courts to set the rules and outcomes. It also allows for solutions to be tailored to meet the issues facing the negotiating group…’ So rather than going to court, and having to fulfil even the new relaxed tests required there, Maori may negotiate directly with the Crown and be given whatever they want without even that degree of scrutiny. There will, in fact, be an entirely new enormous round of claims, as all over the country iwi decide to have another bite at the cherry and claim yet more racial privileges and special treatment, disguised as ‘legal entitlement’. The Crown’s readiness to hand over public resources has already been made very clear. And now our government is preparing, once more, to sell us down the river.

“But ~ the next thing to be very alarmed about ~ the holders of customary rights would be able to have input into such things as the allocation of space in the foreshore and seabed, and how coastal permits are granted. Local authorities would have to take the planning documents of coastal iwi and hapu into account when planning under the Resource Management Act. The Historic Places Trust, Department of Conservation and Ministry of Fisheries would have to take them into account. So any Maori with customary title will essentially have a right of veto over innumerable things which might take place on the foreshore and seabed. They ‘would not be obliged to comply with the requirements of the RMA when giving or declining permission for a coastal permit’. They ‘would have the right to…refuse to give…consent to conservation proposals and applications…’ they might well decide that in future they, with their customary rights, will be the sole users of foreshore and seabed. And even if they decide to let other people use the foreshore and seabed, there will, of course, be nothing to stop iwi from accepting a koha ~ a financial inducement ~ in helping them to reach a decision on the matter”.

All in all, this foreshore and seabed proposal is a sell-out to Maori. It will open the foreshore and seabed up to exploitation. If you are also concerned about the fact that National are trying to rush this through without adequate consultation, then you MUST speak out. Email the Minister and tell him that New Zealanders need more time and more information before we can decide on the future direction of this legislation.

In fact, there is no rush on this. The present law appears to be working. The only imperatives for haste are political and that is no basis for good law making. The future of the foreshore and seabed is an issue that affects us all. The choices for the future of the foreshore and seabed should be the subject of a binding referendum at election time. After all at that time we will all be voting on the future of MMP, so an extra question on the ballot paper will not add greatly to the cost. It will be worth it anyway to make sure that the government gets it right, given that their suggested proposals have already been described as creating “de facto Maori sovereignty for coastal tribes”.[3]

All that is necessary for the triumph of evil is that good men do nothing… Edmund Burke.[4]

1.NZ Government, Reviewing the Foreshore and Seabed Act 2004
2.Court of Appeal, 
In Re The Ninety Mile Beach,1962-3.
3.Michael Coote, Foreshore tide will sink New Zealand to seabed, National Business Review 9 April 2010
4.This quote is attributed to Irish philosopher Edmund Burke (1729-1797)