Do we need property rights? Of course we do; this is the foundation for our property-owning democracy. That is the question to be asked against the background of the current controversy relating to Maori claims to ownership of the foreshore and seabed.
My concern is that this controversy is raising uncertainties. Uncertainties that cannot be readily resolved unless the Government is prepared to take firm action to clearly establish the way forward. Without that is, complicating the approval process for any development initiative and again increasing compliance costs. Action is critical because delays in grasping the nettle will only increase Maori expectations beyond any measure that would be acceptable to the broader community. These uncertainties must be addressed!
This issue has only arisen as a response to the recent Judgments of the New Zealand Court of Appeal in the case Ngati Apa & Ors v The Attorney-General & Ors. Little regard appears to have been had to what the Judges have actually said about the possible existence of Maori customary rights to the foreshore and seabed. There has been no recognition of the difficulties in the way ahead for Maori in their attempts to assert them. The Prime Minister's initial response in my opinion, was correct; namely that the foreshore and seabed are available for the benefit of all New Zealanders. However, in the face of an outcry from Maori, her Government has wilted and set up a process for resolving an apparent dispute over this issue upon a basis that I have real concerns about.
A Government should not contemplate sharing its governmental authority (sovereignty) with any sectional interests, whatever is the motivation for such course. I endorse the concept of one Government/one law for all New Zealanders.
To depart from this principle will lead to confusion and unnecessary conflict. From the perspective of private property owners who may wish to develop their land in a manner that involves access to the foreshore and seabed, uncertainty, delays and a probable dramatic increase in compliance costs lies ahead.
To open the debate, I would like to raise with you two propositions.
The first requires you to envisage a situation where you are living in New Zealand in a hostile environment where all references to places, streets and any maps have been removed. Your task is to travel, say from Auckland to a given street in Invercargill. No help can be expected from people on the way. I am sure you will agree that I have set up a task fraught with difficulty.
Secondly, about twenty years ago a friend of mine who was a secondary school teacher in Auckland, explained how many school teachers of his experience who, ten years before, had excellent records, were now failures because they were incapable of establishing boundaries for acceptable behaviour in their classrooms. The result was anarchy caused by a dissident few to the detriment of the rest.
We have not always had to face such uncertainties. Prior to the delivery of the Judgments of the Court of Appeal already referred to, it was generally accepted that the foreshore, ie land falling below mean high water springs and the seabed was owned by the Crown for the benefit of all New Zealanders. I reiterate for all New Zealanders! It is important to appreciate what the Court has said in these judgments:
In addressing the issue of sovereignty and in overturning the long-standing decision of the same Court in the Ninety Mile Beach case, the Court said (in the Judgment of the Chief Justice) at para.85:
"I agree with the further opinion of Robert-Ray that the judgments represent 'extreme views'. They are not supported by authority. The applicable common law principle in the circumstances of New Zealand is that rights of property are respected on assumption of sovereignty. They can be extinguished only by consent or in accordance with statutory authority. They continue to exist until extinguishment in accordance with law is established. Any presumption of the common law inconsistent with the recognition of customary property is displaced by the circumstances of New Zealand."
And, at para.89:
"It is conceivable that valuable tribal resources (perhaps such as the foreshore of the Ninety Mile Beach with its toheroa fishery) were not susceptible to subdivided ownership, while the land upon which habitations and cultivations were situated was. Again, that is a matter the Maori Land Court would have to consider as a question of custom and usage. But an approach which precludes investigation of the fact of entitlement according to custom because of an assumption that custom is displaced by a change in sovereignty or because the sea was used as a boundary for individual titles on the shore is wrong in law."
Justice Tipping in his Judgment also makes reference to the Ninety Mile Beach case at para.204:
"The decision in Ninety Mile Beach has stood for 40 years. Furthermore, it must have been regarded as correctly stating the law by those responsible for subsequent legislation. Hence a cautious approach should be taken to the suggestion that the case was wrongly decided. That said, I am driven to the conclusion that it was. While the reasoning in the two principal judgments has internal logic and consistency, the problem is that they do not sufficiently recognise the appropriate starting point, namely that Maori customary title and the associated status in respect of the land involved, became part of the common law of New Zealand from the start. As already noted, it was not a matter of the Crown granting customary title to Maori. They already held it when sovereignty was claimed and continue to hold it thereafter unless and until it was lawfully extinguished. As the Chief Justice has said, the contrary approach conflates sovereignty with absolute ownership. The Crown's ownership is and never has been absolute in this respect. It is and always has been subject to the customary rights and usages of Maori as regards their lands."
It is clear from a reference to their individual Judgments that all the Judges conceded that the end result from this litigation is by no means certain. For example at para.8, the Chief Justice says:
"The matter therefore comes before this Court on the preliminary and general questions of law posed by the Maori Appellate Court for the High Court. The significance of the determination of this Court is asked to make should not be exaggerated. The outcome of the appeal cannot establish that there is Maori customary land below high water mark. And the assertion that there is some such land faces a number of hurdles in fact and law which it will be for the Maori Land Court in the first instance to consider, if it is able to enter on the inquiry."
And, at para.9:
"Whether or not the appellants will succeed in establishing in the Maori Land Court any customary property in the foreshore and seabed lands claimed and the extent of any interest remains conjectural. In the past, claims to property and areas of foreshore and seabed seem to have identified relatively discreet areas comprising shellfish, sandbanks, reefs, closely held harbours or estuaries and tidal areas or fishing holes where particular fish species were gathered. ……… Nor will the appeal resolve questions of the nature of any property interest in land (whether it approximates a fee simple interest or whether it is lesser property)."
Para.10:
"Depending on the nature of any interest accepted by the Maori Land Court as a matter of tikanga, subsequent questions of law may arise. They could include, for example, whether the Maori Land Court (in its statutory jurisdiction) or the High Court (in its inherent jurisdiction) can recognise interests in land not equivalent to rights of ownership of the fee simple and whether any interest is affected by the terms of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Such matters cannot sensibly be considered until the facts have first been found. If the land below high water mark is mainly Crown land as the respondents maintain, it is not clear whether there may be a basis on the facts for the application under s18(1)(i) of Te Ture Whenua Maori Act for a declaration that it is held in a fiduciary capacity."
In the joint Judgment of Justices Anderson and Keith at para.129:
"The significance of any ruling at this stage in favour of the iwi is limited: the questions are asked before any facts are found - it is not, for instance, known whether related coastal land has been sold, has been the subject of Native or Maori Land Court investigation, or has been otherwise disposed of; the questions are abstract; they do not identify the nature of the customary land or title in issue nor do they identify possible incidents of any status which is determined; they do not ask the Court to draw any consequences from any finding that customary land or title does exist; and the answers are not, in our view, affected by statutes which provide for the regulation and management of marine areas, including their resources, as opposed to their status or title, or the ownership of them. The impact of that legislation on whatever property might be established might be very substantial, but that matter is not before us."
Similar statements appear from the Judgments of Justices Gault and Tipping. Essentially therefore, there is a real risk that this issue has been blown out of all proportion.
What is implicit from the Judgments of the Court of Appeal is that this issue has only arisen because the Government of New Zealand has failed to explicitly legislate to extinguish any customary rights. The Government's right to do so is not in question.
What is clear is that the common law does not recognise the right of an individual to hold an interest in property against allcomers without qualification and the right to do what he or she wishes with it. The Crown has always reserved to itself the right to resume title to land for a perceived public benefit.
The Crown has however, limited its right to do so by acknowledging the need to demonstrate that resumption is required for the purpose of a public work pursued in the public interest. Until 1935 that right was further qualified by the obligation that the acquiring authority had to offer the land back to the party from whom it had been taken at present day value if it was then no longer required for the purpose for which it had been taken. In 1935, the Government of the day removed that right and it was not restored until the enactment of the Public Works Act 1981.
Furthermore, legislation such as the Building Act 1991, the Health Act 1956, the Historic Places Act 1993, the Local Government Act 2002, the Public Works Act 1981 and the Resource Management Act 1991 to name but a few, impose restrictions upon the way in which an individual may use his or her land and in a manner that is no longer contestable.
Here, I am referring to the necessity for the Government to resolve this issue by establishing clear boundaries and guidelines. I focus on the most important boundary in relation to this debate - that of sovereignty - the right of the legitimately elected Government of this country to assert its sovereign right to govern.
That right is already the subject of debate within Maoridom.
Firstly, there are the claims of a dissident group of extremists who refer to themselves as the Confederation of the United Tribes of Aotearoa. They claim that pursuant to a Declaration of Independence which they allege was made in 1835 that as descendants of those who made that declaration, they are entitled to claim to be the legitimate government of this country. Therefore, they do not recognise the right of the Government to asserts its sovereign right to govern them. Such claims have little currency among responsible Maori leaders.
It is the second challenge however that is more serious. This is the claim advanced by a number of responsible Maori leaders, supported by some academics that by reference to the use of the word Rangitiritanga in the Maori version of the Treaty of Waitangi it can be asserted that Maori never ceded sovereignty of this country to the British Crown.
This, in my opinion, is a serious challenge - it is spurious and no responsible Government can allow it to be said that it does not have the right to assert its sovereign right to govern for the benefit of all its citizens. Such a claim must therefore be robustly rejected.
A government must assert its own legitimacy or risk losing it. This is where the debate on foreshore and seabed must commence.
The present Government's approach involving the suggestion that the foreshore and seabed should not be "owned" by anyone but held as "public domain", a concept unknown to the common law is at the core of the debate.
I refer to a recent publication entitled "Protecting Public Access from Customary Rights - The Foreshore and Seabed of New Zealand" discusses the issue of public domain as follows:
"In this paper the Government has proposed an overall framework that articulates clearly that the foreshore and seabed are areas of public domain, where all New Zealanders are able to enjoy open access and use. As with all of New Zealand's territory, those areas are subject to regulatory control by the state. But in general the starting point is the foreshore and seabed should not be subject to private rights of ownership.
The rule would make it clear that no new private titles could be created over the foreshore and seabed, whether as a result of an investigation of Maori customary interests or other processes. If a Court in the future found this meant it was unable to give full recognition to customary interests that it found had continued to exist since 1840, then the Court would be able to alert the Government to this consequence. The Government would then discuss with those affected what steps might be taken to address the issue.
The paper identifies that there are some areas of the foreshore and seabed that are already in private ownership. It raises two options for addressing these inconsistencies, which are either to legislate across private titles for public access, or to set up a process to identify any areas where private rights exclude others that exist and negotiate with owners over time to achieve public access and use."
I begin by saying that the statement that no new private titles could be created over the foreshore and seabed is welcomed, but that was unlikely to occur in any event. Reference need only be made to s237A Resource Management Act 1991 to show that where a subdivision application is submitted to a local authority and where part of the area being subdivided includes the bed of a river or lake or within the coastal marine area, then that part shall be ceded to either the territorial authority or the Crown without payment of compensation.
What does the Government's programme mean? Who is to own the foreshore and seabed? Who is to regulate and control it? I have taken from the language used in this publication that these are the issues that the Government has failed to resolve. The statement at page 23 under the heading "Ensuring that Regulatory Responsibility is Clear", separate from questions of ownership which is followed by the statement:
"Preserving the public nature of the foreshore and seabed can be done directly, not via the concept of Crown ownership". Similarly the concept of Crown ownership is not necessary for the Crown to be able to regulate. That capacity is inherent in Government and will always continue."
It is submitted that this suggestion is fraught with potential for future unnecessary conflict. Clearly a different posture will be required from Government in relation to international recognition of a definition of New Zealand's territorial sea, the exclusive economic zone and continental shelf. The fact that this is so, holds up to ridicule the Government's claim that it does not need to own these important elements of our territory.
What are customary rights and how are they to be successfully asserted?
Maori spokespersons have complained that their interests are likely to be prejudiced before a proper process has been followed to determine whether there are any customary claims to the foreshore and seabed needs now to be addressed. Yet the common law provides them with little comfort.
"The requirements of a custom are that it must be certain, reasonable and continuous, or rather that the evidence of user adduced in support of an alleged custom must satisfy those requirements. It must also have existed from time immemorial. The rule laid down in claims by prescription that the long enjoyment necessary to establish the right must have been as of right, and therefore neither by violence, nor by stealth, nor by leave asked from time to time, applies equally in the case of a claim by custom."
That statement of the common law position in relation to a claim for customary rights highlights the question posed by the Chief Justice which has been referred to earlier in this paper.
A further question that I raise is whether a special division of the Maori Land Court is the proper venue to determine property rights which could be exclusionary in relation to 85% of the population of New Zealand. Again, the Chief Justice in her Judgment appears to have accepted that this may not be so. It is my submission that there can be no doubt that although the Maori Land Court is a proper Court to arbitrate upon disputes among Maori as to their customary rights in disputes among iwi, the Court is not the appropriate venue for the determination of rights which affect non-Maori as well as Maori. In circumstances where land ownership is asserted, this should be a matter for a determination by the civil Courts. Furthermore, there is an internal inconsistency in the Judgment of the Chief Justice. At para.5 she says:
"For reasons later developed, I am of the view that the questions as eventually framed are indeed not helpful in that it is impossible to resolve many of the legal points raised in them in advance of determination of the facts. It is as well to keep in mind the warning of Lord Haldane in Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 404 that, when considering questions of customary property,
'abstract principles fashioned a priori are of but little assistance, and are as often as not, misleading.'"
A principle well understood and frequently applied by Judges when refusing applications seeking a preliminary determination of a question of law before necessary evidence had been led.
It is to be remembered that the case before the Court of Appeal had its genesis in a Judgment of Judge Hingston in the Maori Land Court arising from a claim to the whole of the foreshore and seabed of the Marlborough Sounds extending to the limits of New Zealand's territorial sea upon the basis that it was Maori customary land as defined in the Te Ture Whenua Maori/Maori Land Act 1993 ("the Act").
At para.13 of her Judgment, the Chief Justice says:
"I have had the advantage of reading in draft the judgments of the other members of the Court. Like them, I am of the view that the appeal must be allowed and the applicants must be permitted to go to hearing in the Maori Land Court. I am of the view that the judgment of Judge Hingston in the Maori Land Court was correct."
I am indebted to Mr M J Q Poole, a practitioner with a recognised expertise in relation to litigation before the Maori Land Court for permission to refer to his paper "The Foreshores and Seabed of New Zealand: A Response to the Government Proposal for Consultation."
He refers to the claim of the eight Maori tribal appellants to the Court of Appeal as one that would extend to harbours, marinas, private jettties and aquaculture. The eight tribes formed a Steering Committee (Te Ope Mana a Tai) which stated its demands as follows:
"Our customary rights in respect of the coastal marine area include, but are not limited to, self governance (control, regulate, manage and allocate) development (both in a cultural and economic sense) exclusivity (being able to exclude in accordance with tikanga, ie rahui) use (in its many forms) and access.
I agree that this enunciation of demands clearly seeks even greater control over lands and freehold ownership of general non-Maori land.
A clearly defined analysis of case law establishes that each claim for a title to Maori customary land brought before the Maori Land Court must prove:
(a) That the title (take) was in existence in 1840.
(b) That the land was occupied and used from 1840 down to the present date - the principle of ahi kaa (keeping the fire alight).
(c) That the claimants must prove "exclusive use".
(d) Who are the persons or tribes whose names are to be shown on the vesting order of the Maori Land Court prior to the issue of a certificate of title.
One particular case which provides a practical instance of the application of Maori customs and usages to determine entitlement to customary land is the decision of the Maori Appellate Court in Ngakororo case.
In its Judgment, the Court said:
"Just as in the investigation of title to customary land, it is necessary for the claimants to establish their right, and this was done by showing that -
(a) The land has descended to them from a tribal ancestor, and
(b) has been in the continual occupation of the claimants and their predecessors prior to 1840 and down to the date of investigation."
The Appellate Court also commented:
"The evidence shows that the mud flats have been used at low tides by anyone desiring to cross and there is no indication that the claimants have exercised any proprietary rights in respect of the land or of exclusive rights of fishing or otherwise."
The Court did not uphold the claim.
Yet, in his interim decision on the Marlborough Sounds claim Judge Hingston made the following initial determination:
"The question I am dealing with in this interim determination put simply is whether since the signing of the Treaty of Waitangi in 1840 Maori Customary Rights to the foreshore and sea bed in and around the Marlborough Sounds in New Zealand have been extinguished.
For the purpose of this enquiry it is assumed that there were existing Maori Customary Rights prior to 1840; there has been no evidential enquiry to establish that there were such rights as the investigation will entail extended hearings and it was considered that the legal question was best determined before such a lengthy enquiry."
This preliminary determination by the Judge flies in the face of s132(2) of the Act which requires that every title and interest of Maori customary land shall be determined according to Maori custom and usages, or, in the language of the Act, values and practises.
It therefore is submitted that the Chief Justice was wrong when she asserted that the Judgment of Judge Hingston in the Maori Land Court was correct because:
(a) He conceded there had been no evidential inquiry to establish such rights.
(b) He "assumed" there were existing Maori customary rights prior to 1840 without any evidence to support that assumption, and
(c) in the case stated to the High Court Judge, Hingston concluded:
"That in the absence of extinguishment customary title to the foreshore remained extant."
That final assertion that customary title to the foreshore remained extant, unsupported by any evidence, legal authority or statute and in contrary to s132(2) is clearly not sustainable.
This issue does not appear to have been raised before the Court of Appeal. The result has been that Maori tribes have not been required to prove either the nature and extent of their customary title before the Maori Land Court or that that customary title continued to exist from 1840 to the date of application by occupancy and use.
This must give rise to grave concern at the prospect that the Maori Land Court should be left to deal with such an important issue.
However, unquestionably the High Court in its inherent jurisdiction can and should deal with this matter.
Despite the Court of Appeal finding that the Maori Land Court has jurisdiction to hear and determine this issue, for the reasons already expressed, this Court is not the appropriate venue for such an important debate. The section in the Act conferring jurisdiction on the Maori Land Court is s18.
Sections 18(1)(a) and (h) clearly state that the Court has jurisdiction:
"(a) To hear and determine any claim, whether at law or in equity, to the ownership or possession of Maori freehold land, or to any right, title, estate, or interest in any such land or in the proceeds of the alienation of any such right, title, estate, or interest.
(h) To determine for the purposes of any proceedings in the Court for any other purpose whether any specified land is or is not Maori customary land or Maori freehold land or General land owned by Maori or General land or Crown land:"
Claims to the foreshore and seabed by Maori who seek to assert the right under custom to a freehold title to such areas should be considered by the civil Courts available to all New Zealanders and not dealt with by the Maori Land Court in which non-Maori, who may be significantly affected, have no guaranteed right of audience.
In the unlikely event that Maori are able to assert ownership in the sense that Land Transfer titles are granted to them over foreshore and seabed then such a right, once conferred, should not be removed without payment of adequate compensation.
However, what is at issue here is not ownership but customary rights; an entirely different concept.
Reference should also be made however to the Judgment of Cooke J (as he then was), in his Court of Appeal Judgment in Auckland Acclimatisation Society v Sutton Holdings .
"Ownership of land does not of itself carry the right to alter the natural conditions (in that way)."
This case concerned an application for water rights permitting farmers to drain the Whangamarino Wetland to increase the area of arable land within their farms. The High Court Judge had invoked the principle that a statute should not be held to take away private rights without compensation; here the right to drain the swamp. It was held that this principle had limited scope in planning law.
It is therefore very unlikely that Maori customary rights could extend to a claim for ownership of foreshore and seabed.
Practical Issues of Administration of Management Regimes
Already under the Resource Management Act there is an obligation to consult with Maori on matters of cultural concern to them. Section 6 defines matters of national importance which include the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.
Section 7 requires all persons exercising functions and powers under the Act to have particular regard to kaitiakitanga which the Act defines as meaning:
"The exercise of guardianship by the tangata whenua of the area in accordance with tikanga Maori in relation to natural and physical resources; and includes the ethic of stewardship".
Section 8 requires that:
"In achieving the purposes of this Act, all persons exercising functions and powers under it, in relation to the managing of the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi".
The provisions of the Historic Places Act 1993 provide full protection for sites of proven significance to Maori. Therefore the interests of Maori are now protected in relation to any proposals for the development of land or water areas. There has been a dramatic shift in the approach taken by central and local government towards such issues over the past twenty years. The Courts have also recognised and provided for such protection in relevant determinations on matters affecting Maori.
However, problems faced by developers in attempting to address issues which may raise Maori cultural concerns within a given area are significant. The problem is in attempting to establish who it is that is entitled to claim the status of tangata whenua with the right to assert mana whenua over the relevant area. I have experienced situations where there has been extensive consultation with properly mandated authorities established by iwi following negotiations with regional and territorial government agencies.
The fact that this consultation has resulted in agreement with the mandated authorities has not inhibited dissident groups among iwi from challenging the decisions reached with those mandated authorities. This has involved disruption of the consent process, substantially increasing delays in achieving approvals with consequent increases in costs. This will continue.
In Auckland there are six iwi who claim mana whenua status over the Auckland Isthmus. I refer to the article published in the New Zealand Herald "Tribes Wrangle over Land Status" as an indication of the problems that will be faced if the Government fails to be sure-footed over this issue.
On the Coromandel Peninsula the existence of the Wai-100 Claim to be determined by the Waitangi Tribunal has resulted in recent disputes among iwi on the peninsula to the location of rohe boundaries.
My fear is that if the Government proposed to settle the foreshore and seabed issue on the basis of a shared responsibility with Maori for the regulation and control of these areas, this could produce serious results for landowners who wish to pursue development options where access to the foreshore and sea is required. The foreshore and seabed are areas of New Zealand that should be available for all.
If there are legitimate claims to the contrary then they should be recognised and compensated for. For my purposes I do not accept that there is any precedent for taking away existing rights of value without payment of adequate compensation for any such loss. The Government must ensure that any interference with the rights previously recognised for all New Zealanders to have free access and use of the foreshore and sea is extinguished to avoid further conflict and that no new regulatory regimes are created which will have the potential to create confusion, uncertainty and greatly increased compliance costs.
Conclusion
Property rights are needed. The laws of New Zealand must recognise that the foreshore and seabed is owned and controlled by the Crown for the benefit of all New Zealanders. The current debate as to how the Crown is to address the issue of Maori customary rights to the foreshore and seabed must be resolved in a manner that does not involve a surrender by the Crown on that fundamental issue. In particular, there can be no settlement that involves any concept of a shared responsibility for the regulation and control of these areas. Maori customary rights must be clarified under an appropriate process which gives recognition to the interests of all New Zealanders and avoids the creation of any future uncertainties.
Paul Cavanagh QC
4 October 2003