Foreshore And Seabed Letter To Dr Michael Cullen

Thursday 21 Aug 2003 Richard Prebble Other -- Treaty of Waitangi & Maori Affairs

Hon Dr Michael Cullen

Deputy Prime Minister

Parliament Buildings

Wellington

21 August 2003

Dear Dr Cullen

Re: Foreshore and seabed issue

The media has asked me whether ACT will support the Labour Government's proposed legislation on the foreshore and seabed.

I have replied that ACT has not been able to make definitive decision because the Government announcement is in political language and uses words not in the Oxford Dictionary. Legally, the proposals are gobbledygook. No lawyer could have written the press releases.

I am writing seeking clarification and further information.

In particular, I would like to know how you define the term "public domain"?

What does the Government mean by the phrase "Maori Customary Rights"?

Let me set out what, I think, the Government has announced, and you can tell me if I am right. If I am mistaken, how?

The legal situation today.

1. The Crown owns the seabed and the foreshore, except where there are Torrens titles e.g. some wharves, riparian rights, where the foreshore has advanced onto what was land etc - less than 1% of the foreshore.

2. Maori have a few traditional shellfish and fishing areas recognized under the Sealord fishing settlement. Maori are among the larger holders of such land. Maori have a form of control over shellfish and fishing areas recognized under Fisheries law and some Treaty settlements.

3. The Court of Appeal has said Maori can take claims for new titles based on customary use of foreshore and seabed.

4. Today Maori have not established any such legal title to either the foreshore or the seabed.

Labour is legislating, so it follows that Government is changing the status quo.

The Government's Proposal

1. The Crown is giving up its ownership of the foreshore and seabed.

2. The Maori Land Court is to be empowered to grant to iwi and hapu customary rights over the seabed and foreshore - everything, short of fee-simple title and the ability to block public access to the foreshore. Therefore no one owns the foreshore and seabed.

3. Customary rights can include the power to control, licence and receive rent from commercial uses of the seabed and foreshore.

4. Maori will also be able to claim mineral rights to the seabed and foreshore. The Crown claim to own mineral rights arises from the Crown's ultimate ownership of all land, which the Crown is now surrendering of the seabed and foreshore. One effect of the Crown giving up seabed ownership will mean that minerals not claimed by Maori will be able to be claimed by anyone.

5. Indeed, the only restriction of any Maori property rights is that the public will still have access to the beach.

6. The process of working out which Maori claims will succeed has no end date, so other New Zealanders' rights in those areas will be in limbo for years (decades if the normal timetable of the Maori Land Court and the Waitangi Tribunal is a guide).

As Maori claim to have never sought to stop the public from going to the beach, this seems a total victory for Maori. This is no doubt the reason why the Labour Maori caucus is supporting the Government policy.

Is my analysis correct?

Please regard this as an Official Information Act request.

Could I have all documents from officials advising on these issues?

I formally request a briefing by officials for the ACT caucus. I note that the Government has been willing to brief a number of groups in the community so it seems reasonable to me for the Government to provide a detailed briefing for MPs who request it.

Yours sincerely

Hon Richard Prebble CBE

Leader, ACT New Zealand

For more information visit ACT online at http://www.act.org.nz or contact the ACT Parliamentary Office at act@parliament.govt.nz.

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