Foreshore and Seabed Overview

ACT opposed Labour’s 2004 Foreshore and Seabed Bill because we believe that iwi - like all New Zealanders - should be able to apply to the courts to explore the nature and extent of, and to defend, their property rights. The existence and scope of customary rights, or any contested right, should be a matter for the courts to decide, by applying existing common law.

The principle is simply the rule of law - one law for all.

Read Waves of Discontent - ACT's report on the Bill, and the submitters who almost universally oppose it.
See ACT's PDF "Where The Land Meets The Sea: More Than Meets The Eye" for an explanation of foreshore and seabed private title definitions.

Background

Until 2003 it was widely accepted that the foreshore and seabed was vested in the Crown in accordance with British common law. This was affirmed in the Ninety Mile Beach (1963) case and by some legislation.

That general understanding was reinforced because, until recent times, Treaty of Waitangi claims generally did not include claims for the foreshore and seabed. Article 3 of the Treaty of Waitangi provides that “Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects”.

This means that since 1840 Maori have been entitled to call on the common law and the protection of the courts to attempt to establish customary rights.

It is a long-established principle of the common law that certain customs can have the effect of law if they have been exercised by local inhabitants over long periods of time. These may include such matters as rights-of way, the right to fish or collect shellfish, or the right to plant a particular crop.

The celebrated jurist Lord Denning noted: "These customary laws are not written down. They are handed down by tradition from one generation to another. Yet beyond doubt they are well established and have the force of law within the community.”

For generations these customary laws have walked hand-in-hand with statute law. Judges have been able to look at the way that communities have operated over the years, and to recognise local custom and usage where it conflicts with the broader law.

The Ngati Apa case and Labour’s Foreshore and Seabed law

The Ngati Apa case in 2003 began as a dispute about the administration of marine farming permits under the Resource Management Act and the (since repealed) Marine Farming Act. In Ngati Apa the Court of Appeal found unanimously, contrary to the ruling in Ninety Mile Beach (1963), that because the Crown had never extinguished customary title to the foreshore and seabed the Maori Land Court had jurisdiction to consider it, and Ngati Apa and the joint applicants should not be barred from making an application to that Court.

No judgment was made about the likelihood of success in such a case, but the judgment did note that it would be difficult for any claimant to prove customary title: “the bar would be high – possibly set too high for most applicants”.

The natural next step for the Government was to challenge that ruling – a controversial ruling which overturned long established law by appealing that decision to the Privy Council. No doubt because the Labour Government of the day was in the process of abolishing appeals to that Court, this did not happen.

Instead, three days after the Ngati Apa judgment, the Prime Minister announced an intention to legislate to overturn the decision. An initial proposal to introduce a concept of public domain for the foreshore and seabed was met with huge political opposition, which was galvanized with National Leader Don Brash’s “Orewa speech” in early 2004.

As the controversy raged, the Government’s position was modified and the resulting Foreshore and Seabed Act (2004) reaffirmed Crown ownership. But the Act did give groups the opportunity to apply to the courts for customary rights orders, which would recognise and protect the sorts of activities likely to be covered by the common law notion of customary rights.

The 2004 Act also gave iwi the right to seek confirmation through the courts that they would have held territorial customary rights had it not been for the declaration of Crown ownership in the Act, and it also provided for iwi to circumvent the process by proceeding directly to negotiations with the Crown (which Ngati Porou quickly did). The test for such a declaration was that there had been continuous title to the land contiguous to the relevant area of foreshore and seabed since 1840, and that the area had been used and occupied exclusively by the iwi without substantial interruption.

Some criticisms of the 2004 Act have been overstated. It has been described as the greatest land confiscation in New Zealand history, yet the only parts of the foreshore and seabed that could be said to have been “confiscated” were those likely to have been successfully transferred to Maori freehold title - which is certainly a very small proportion of the entire foreshore and seabed area (if any at all) given that the hurdle in common law is so high.

Nor did Maori lose customary fishing rights or the right to 20% of all current and future aquaculture space from this Act.

What Labour’s 2004 Act primarily confiscated was the right to due process, mitigated somewhat by the provisions for customary rights orders and High Court tests of territorial customary rights which, if successful, would lead to negotiations with the Crown on compensation.

Nevertheless, the path that should have been followed was the natural course of due process, with the Crown appealing to the Privy Council and then dealing with the consequences of whatever final judgment was made.

Marine and Coastal Area (Takutai Moana) Bill

Following the 2008 election the National Party and Maori Party agreed to review the Foreshore and Seabed legislation, and now seek to abolish the 2004 Act, replacing it with the Marine and Coastal Area (Takutai Moana) Bill.

This Bill has numerous problems.

At the more general level:

• The Bill draws on aspects of the co-governance model in some Treaty settlements, by granting Maori participation in statutory processes and by introducing veto rights that will add a further layer of complexity and cost to an already over-regulated society.
• It is riddled throughout with undefined Maori terms and ambiguous or undefined expressions in English: a Bill that affects everyone should be in plain English, and not have crucial provisions or phrases expressed in ways which lack precise definition. These problematic expressions include: “substantial interruption”, “more than minor”, “customary authority”, “reasonable grounds”, “mana tuku iho”, “tikanga”.
• It allows for deals to be done behind closed doors, without parliamentary scrutiny, thereby making it inevitable that customary rights and customary title decisions will end up being corrupted by political deal-making.
• There are potentially vast wealth transfers involved: what would otherwise be held by the Crown for the interest of all, could pass into the ownership of tiny minorities, all justified on the flimsiest of grounds and influenced by the needs of temporary political coalitions.

ACT is concerned that, with this Bill, National risks taking legitimately-held rights away from some, while granting rights to others who aren’t entitled to them. Problematic issues in the Bill include:

• The Bill is likely to substantially expand potential iwi or hapu rights over the New Zealand coastline.
• It significantly lowers the common law tests for iwi to gain powerful coastal rights:
• their rights must have been used in substantially the same way since 1840, but the rights can “evolve over time”
• Will no longer need to own the land abutting the claim
• Exclusive use and occupation is now only required “without substantial interruption”
• Customary transfers of the land may have occurred, which greatly weakens the exclusive use and occupation provision
• It creates three level of Maori rights with substantial governance powers:
• “Mana tuku iho” co-management rights, covering the whole coastline
• Protected Customary Right powers which outrank local authorities
• Customary Marine Title which gives powerful ownership rights, including development and mining rights, full rights of veto over resource consents and conservation applications, and the ability to impose coastal plans on local and central government. A customary marine title holder has the right of veto over any other RMA consent application (an RMA permission right) in the area “on any grounds” and with no right of appeal.

The process envisaged in the Bill lacks transparency; will not be open to those who contest the claimed special status; will have no right of appeal; and will be open to influence by considerations which are personal, subject to the political pressures of the day, and thus open to manipulation and corruption.

The Bill removes the need for Maori to take their claims to court, making the legal process a last resort because they can do deals behind closed doors with the government of the day.

It’s easy to see the possibility that, where two competing iwi make a claim, the likely winner will be the more politically influential iwi that can offer the most support to the Government.

Customary title owners will be able to seek protection of certain parts of the coastline asserted to be sacred (wahi tapu) sites, which may then be closed to the public or have conditions imposed on those who enter. The limitations on such assertions are poorly circumscribed or defined, and there is no obvious dispute resolution mechanism, other than judicial review of the Minister’s decision to allow the condition (Clauses 77 and 78).

What Should Happen?

The proper process is to:

• Reinstate the rights of appeal for Ngati Apa and the Crown which were denied by the 2004 Act;
• Provide for any case to be taken to the general courts, and on appeal to higher courts;
• Reconfirm ownership of the foreshore and seabed in the Crown, but without prejudice to claims for customary rights and interests;
• Leave the Courts to resolve the issue under normal common law principles which consider issues of domination or control, persistence or continuity of use, access and exclusivity; and
• Apply the law even-handedly to all property interests and all New Zealanders.