The 5-Minute Foreshore and Seabed

Many of you will be aware of the Government’s current proposed legislation to curtail Maori rights to the foreshore and seabed. I’ve written a quick summary from my perspective that may be useful to get a handle on what is happening.

The 5-minute Foreshore and Seabed
A Pakeha perspective and summary – May 4th 2004
http://www.dannybutt.net/foreshore.html
Danny Butt <db@dannybutt.net>

PLEASE CIRCULATE

1) The foreshore & seabed under this Bill is defined as the area
*below* the high tide mark. The bill does not guarantee any rights of
public ownership of or rights of access to the beach.

2) Coastal land adjoining the foreshore runs to 19 883km according to
Land Information New Zealand. Of this, the Crown owns 7455km, local
bodies own 6239km, and 6032km is privately owned. Of the private
coastline, only one-third (2053 km) is registered as Maori Land
(although Maori may also be represented among other private owners).

Most of the privately owned coastline has no public access. Only 187km
(3% of private coastal land) has the “Queens Chain” guaranteeing public
access to 20 metres of land adjoining the water. If the Bill sought to
guarantee public access to the entire coastline, you can be sure that
the Federated Farmers and other landowning groups would be jumping up
and down about theft of their property rights.

3) The bill has nothing to do with access to the beach, but is about
ownership and control of resources. Just checking.

4) The story so far:

i) The Crown assumed it controlled property rights to the foreshore and
seabed. It based this assumption on legal rulings (such as “In Re the
Ninety-Mile Beach [1963]”) that applied British common law to state
that on assuming sovereignty of New Zealand, the Crown claimed
ownership of the foreshore and seabed regardless of existing property
rights.

ii) In 2003 the Court of Appeal found that these legal rulings were
contrary to other well-established interpretations of common law in
relation to customary ownership (in New Zealand, Australia, Canada, and
Nigeria among other places). Just like other property rights, native
property rights established through customary use can not be
extinguished without consent of the owners. The Court of Appeal ruled
that there was no legal reason that the foreshore and seabed should be
any different, and that these rights had not necessarily been
extinguished. Therefore, the Maori Land Court should be allowed to hear
cases relating to Maori customary rights over the foreshore and seabed
and convert those into full property rights under Crown law where
appropriate. The judges’ view was that such rights would be difficult
to establish, but that nevertheless this legal process should be
allowed to take its course.

iii) The New Zealand Government decided that this was an “unintended
consequence” of previous legislation (Te Ture Whenua Maori Act 1993),
and has rapidly sought to introduce a new Bill preventing claims to
customary rights in the foreshore and seabed being heard by the Maori
Land Court, and therefore preventing any possibility of those rights
being converted into property rights under Crown law. [See Note 1
below]

iv) At a series of consultation meetings, there was widespread
rejection of the Crown’s proposals by Maori. This does not appear to
have altered the nature of the Bill in any significant way. The Bill is
now before Parliament.

5) Note that through the Bill the Crown does not take ownership of any
existing property rights to the foreshore and seabed recognised by the
Crown (e.g much of the Viaduct and Gulf Harbour marinas in Auckland).
The *only* property the Crown assumes control of is land customarily
owned by Maori which could in the future be recognised as freehold
property. It is, clearly, a racist law. Maori are the only people
affected by it.

6) As Peace Movement Aotearoa and others have observed, the proposed
bill is a breach of human rights that state that all people should have
a right to due process through their country’s court system. Another
commentator, Leon Penney, points out that this happens through two
fronts: “Firstly, the Crown fought Maori through the court process and
when it lost in the Court of Appeal it has decided to introduce
legislation to overrule the Court decision. Secondly, the Bill denies
Maori the ability to use the accepted court process to gain title. This
has been described by one retired Maori land Court Judge as similar to
what has happened in Zimbabwe.”

7) The Waitangi Tribunal, the commission established to make
recommendations on claims relating to the Treaty of Waitangi, found the
Bill in direct contravention of Articles Two and Three of the Treaty of
Waitangi [1840]. The Bill also disadvantages property rights of coastal
Maori compared to other property rights holders, including other tribes
(for example, Maori ownership of some lakebeds has been recognised by
the Crown). The Tribunal’s first recommendation is that the Government
sit down with Maori and properly explore the options which are
genuinely available, which the Government has not been prepared to do
yet. The Tribunal thought that the Crown’s principles could be achieved
in a Treaty-compliant regime. “Maori are realistic,” said the Tribunal.
The Tribunal’s next recommendation was that the Crown do nothing. There
is no need for this Bill.

The Government has described the Tribunal’s report “dependent upon
dubious or incorrect assumptions” and has failed to make any
significant acknowledgment of the Tribunal’s findings. The Government
continues to paint any opposition to the Bill as “radical”. This should
be seen as surprising given the Tribunal’s unparalleled legal
expertise, and the equal representation from Maori and Pakeha in the
Tribunal’s distinguished membership. The Tribunal’s report
(particularly the conclusion and recommendations) describes the
situation in clear English with a minimum of legalese and should be
read by everyone seeking to understand the issues.

8) The Bill does not rule out court action by Maori to establish
customary rights. But if that action is successful, Maori are not left
with ownership but with “entitlement to some form of redress”. If they
prove an ancestral connection to an area of foreshore and seabed, they
can gain “increased participation in management of that area.” Pretty
vague isn’t it? Think about how you’d feel if it was your beach house
that was being taken.

9) As many claimants to the Tribunal made clear, the public has little
to fear from allowing Maori ownership of parts of the foreshore and
seabed to be established through the courts. Not only is the area of
coastline affected relatively small (particularly compared to the
coastline the public are currently excluded from), but level of public
access is unlikely to change (think of Lake Taupo, owned by Ngati
Tuwharetoa). The Crown’s track record in maintaining assets in the
public interest, however, should give some cause for concern (think of
Telecom).

10) Opposition to the Bill comes not only from Maori or the Left. Even
Roger Kerr, executive director of the Business Roundtable, said that
private rights to the foreshore and seabed need to be upheld, and “this
includes legitimate Maori customary rights to title.” On the one hand
the Government is attempting to facilitate Maori development, while on
the other it is taking significant resources which may by rights belong
to Maori and are of great spiritual, social and economic importance to
them.

11) The Bill should be of concern to all New Zealanders. The
implications of the Bill are larger than “race relations” and reach to
the very basis of our democracy. The effects will be with us for a long
time. While those disadvantaged by the Bill are Maori, the Bill
highlights the Government’s willingness to overturn established common
law rights to get what it wants. It also shows the Government’s
unwillingness to listen to either those disadvantaged by its policies,
or reputable expert opinion.

12) See point 5. This is a racist Bill that should not become law.
Support the hikoi and those opposing the bill
=> http://www.converge.org.nz/pma/hk01.htm

NOTES

[1] Through the Treaty, Maori ceded to the Crown the right of
pre-emption. If Maori sell any of their property rights it has to be
through the Crown process. Leon Penney gives an excellent summary of
the Crown’s process for recognition of customary rights and the way
they become Crown-approved property rights:

“1. Through evidence of customary usage the Maori Land Court recognises
that a certain area had people undertaking a customary activity.  It
 then surveys off that area as customary land.
2. The Maori Land Court will then determine who the people are who had
customary rights for the surveyed area.
3. The Maori Land Court can then issue a  Certificate of Title to those
people. This is legal recognition of their property right to that land.
4. Those people then have Title to the land and can do whatever they
like with it, subject to all NZ laws (eg RMA).

The above process is how the majority of land in New Zealand gained
legal freehold Title. The land you own most likely went through the
above process and was sold by the original Maori owners.”

SOURCES:

Ansley, Bruce. “Stakes in the Sand”, New Zealand Listener May 1 2004

COURT OF APPEAL OF NEW ZEALAND, NGATI APA, NGATI KOATA, NGATI KUIA,
NGATI RARUA, NGATI TAMA, NGATI TOA AND
RANGITANE V THE ATTORNEY-GENERAL CA173/01 [19 June 2003] (from 487KB
PDF from teope.co.nz)
=> http://tinyurl.com/23nh8

Cullen, Michael. Foreshore and Seabed Bill April 8 2004
=> http://www.knowledge-basket.co.nz/gpprint/docs/bills/20041291.txt

Jackson, Moana “Like a Beached Whale – A Consideration of Proposed
Crown Actions Over Maori Foreshore
=> http://aotearoa.wellington.net.nz/he/taku.htm

Mutu, Margaret “The Waitangi Tribunal’s Report on the Crown’s Foreshore
and Seabed Policy” – a summary
=> http://www.converge.org.nz/pma/fsinfo.htm

Peace Movement Aotearoa, “Government foreshore and seabed policy
breaches basic human rights”
=> http://www.converge.org.nz/pma/fs231203.htm

Tuhhah, Helen, “Compensate Maori for seabed: Roundtable”, New Zealand
Herald October 6 2003
=> http://www.nzherald.co.nz/storydisplay.cfm?storyID=3527213

Waitangi Tribunal, “Report on the Crown’s Foreshore and Seabed Policy”
(Wai 1071)
=>
http://www.waitangi-tribunal.govt.nz/reports/generic/wai1071foreshore/

[Thanks to Leon Penney and also the Peace Movement Aotearoa for
assistance with this summary. The summary and any errors are, however,
my own]