Foreshore & Seabed, An Opposition View And Alternative Policy Response

Ken Shirley Speech: Keynote Address to The 6th Annual Public Law Forum. Wellington Town Hall, Wellington, 24th March 2004

Good morning and thank you for inviting me to present an Opposition view to the Government's handling of the foreshore and seabed issue.

This issue has emerged as the defining political debate of the day, and my bet is that it is an enduring one that will not slide off the radar screen anytime soon - despite of Prime Minister Helen Clark's best attempts.

This emotive debate highlights the challenge of defining the nature and extent of collective customary rights held by traditional tribal society, and how such rights might fit within a modern market economy based on individual property rights. It also highlights the angst and uncertainty confronting contemporary New Zealand as we address both real, and imaginary, historic Treaty grievances.

This issue has been exacerbated by nebulous concepts such as "Treaty partnership" and "Treaty principles", which have crept into our laws over the past 15 years through judiciary activism and political expediency.

In essence, the foreshore and seabed issue has become the line in the sand on what it means to be a New Zealander and what rights and freedoms we enjoy as individuals.

Do we all share common rights and responsibilities, or do individuals from one ethnic group in society - defined by the date that at least one of their ancestors arrived here - enjoy special rights and privileges? Who, or what, is tangata whenua? What is pakeha? Are all pakeha tauiwi - foreigners who must be forever grateful to a benevolent tangata whenua who have agreed to share the landscape and resources of Aotearoa?

National Leader Don Brash's January 27 speech to the Orewa Rotary triggered an extraordinary public response. The message from the public is that it is time to stop, reflect and review. The speech also brought to an abrupt halt the protracted honeymoon that Labour has had with the people of New Zealand following its election in 1999.

One month ago Helen Clark and Attorney-General Margaret Wilson labelled those espousing the principle of "one law for all" as racists. Today they are both running along behind shouting "me too, me too".

On the June 19 last year, the New Zealand Court of Appeal released the long-awaited decision declaring that Marlborough Sounds iwi were entitled to go to the Maori Land Court with their claim for customary title over areas of foreshore and seabed in the Marlborough Sounds, and extending to the limits of New Zealand's territorial sea as defined in the Te Ture Whenua Maori Act 1993.

Prior to this decision, the Crown believed iwi were not so entitled - and had, in fact, appealed the original Maori Land Court decision of Judge Hingston in 1998. The High Court decision of Justice Ellis in 2001 rejected the Maori claim and found in favour of the Crown in all eight questions. The Marlborough iwi then took their case to the Court of Appeal which, in an extraordinary decision, overturned the findings of the High Court and a previous Court of Appeal decision.

First it is important to be clear what the foreshore and seabed is. The foreshore is those inter-tidal lands between mean high water spring and mean low water spring tides. The seabed in this legal context is that land permanently covered by sea stretching from the foreshore to the 12-nautical-mile outer limits of New Zealand's territorial seas.

This underlying assumption of vestment with the Crown was based on existing legislation and previous court rulings, such as:

• 1878 - Harbours Act: Parliament legislated to divest the Maori Land Court of jurisdiction to investigate title below high water mark.

• 1894 - Native Land Act: Parliament legislated so that investigation of title of customary land automatically results in the conversion of customary ownership into freehold Maori land.

• 1950 - Harbours Act: upheld position established in 1878.

• 1963 - The Court of Appeal, in the 90 Mile Beach Case, held that there was no remaining entitlement to a further investigation freehold of title to the foreshore based on customary title.

• 1965 - Territorial Sea and Fishing Zone Act deemed the foreshore and seabed to be, and to have always been, vested in the Crown. (Grants made before and after the Act are specifically preserved.)

• 1977 - Exclusive Economic Zone Act reiterated assumption of Crown ownership of foreshore and seabed.

• 1991 - Foreshore and Seabed Endowment Revesting Act: a similar assertion of Crown ownership.

On Monday June 23 2003 - two working days after the Court of Appeal decision - Helen Clark and Margaret Wilson both publicly asserted that the foreshore and seabed is indeed owned by the Crown and, if necessary, the Government would legislate to remove doubt.

Most of the country sighed with relief - a reflection of the relief felt when a month earlier, the Prime Minister asserted Crown ownership over oil and gas reserves based on the 1937 legislation, following a Waitangi Tribunal recommendation that Maori had a legitimate claim.

Any feeling of relief was short-lived. The Government buckled to political pressure from Maori, rapidly abandoning its initial assertion of Crown ownership and floating a nebulous concept of "public domain" owned by no one. The concept of non-ownership created a political, social and economic vacuum - as subsequent developments have shown, nature and politics hate a vacuum

In any event, the focus was wrong. The public was in hysterics over having a BBQ at the beach when the real issue was control of aquaculture. Inevitably there will be a growing need to establish clear private rights in respect of sea farming and aquaculture, as a growing scarcity of marine resources and new technologies open up new horizons. First come, first served might be the best basis for allocating such rights.

Following the initial impasse some extreme Maori - including Associate Maori Affairs Minister Tariana Turia - asserted absolute and exclusive Maori title over all of the foreshore and seabed, with a promise to share with non-Maori. Some even went so far as to declare Maori sovereignty over the seabed stretching to the ancestral lands of Hawaiki. If nothing else, that claim confirmed that - like all New Zealanders - Maori too are migrants to this land.

During this period, Labour attempted to obfuscate the issues. In particular, it conveniently seized upon the report of the Land Access Ministerial Reference Group chaired by John Acland.

This report proposes the affirmation of the Queen's Chain to ensure access to our beaches and waterways. The issues surrounding access through and over private property are, however, quite distinct from title over the foreshore and seabed itself. After all, if the Crown does not own the foreshore and seabed on behalf of us all, and Maori do have exclusive and extensive title - as some, but not the Courts, claim - then the concept of public access to the commons is out the window because it is no longer the "commons".

In other words, the very concept of the Queen's Chain existing as a 20-metre esplanade reserve above the foreshore implies that the inter tidal foreshore and coastal waters beyond are vested in the Crown for the enjoyment of us all. There are a few existing fee simple freehold titles extending into these inter-tidal zones and seabed, but these comprise a very small proportion of the New Zealand coastline. Equally - for very obvious and practical reasons - we do not have esplanade reserves around functioning Port Company facilities.

In the two months following the Appeal Court decision, Labour engaged in a series of consultative hui with Maori - several of which had to be abandoned. All resulted in an absolute rejection of the Government's proposals. They became a rallying cry for some militant Maori seeking to challenge and redefine Crown sovereignty. Others were very reasonably requesting the right to have their day in court to determine the extent of their property rights.

Initially, the claim by iwi for customary title was rooted in common law and was not a Treaty issue. It is also interesting to note that, following the Court of Appeal decision, most iwi throughout the country lodged claims with the Tribunal pursuant to Article ll of the Treaty. It is common knowledge that these claims were prompted and funded by the Treaty of Waitangi Fisheries Commission.

The original Marlborough Sounds case was substantially about leverage for "muscling" into the shellfish industry which, in Marlborough alone, earns more export dollars than the much higher profile wine industry.

Aquaculture is an industry with enormous potential - industry projections show an earning potential of $2 billion by 2020. New technologies have now opened up the potential for deep-water aquaculture, with new pending legislation on how aquaculture management areas will be allocated. The stakes are on the same scale as the Klondike gold rush or Oklahoma land claims.

The $1 billion (today's value) 1992 Treaty of Waitangi Fisheries Settlement was a full and final settlement of all Article II Treaty obligations. This settlement expunged any further commercial customary fishing claims. Aquaculture is unquestionably covered by all statutory definitions of "fish" and "fisheries".

It is my view that some Maori are using the foreshore and seabed debate as leverage to revisit the full and final settlement of 1992 and secure another bite of the paua.

The Treaty claim aspect was reinforced by Government seeking a recommendation on their proposals from the Waitangi Tribunal. Labour realised its tactical error too late. It tried to by-pass the Tribunal but subsequently relented, with the Tribunal reporting on the Government's policy earlier this month.

What a stuff up. The two issues should have been unbundled. Either Maori arguably have existing legal rights arising from customary title, independently of Treaty issues, or they don't. If they do, the rights should be respected once established, or compensation should be paid if they are taken under eminent domain.

Labour initially promised clarifying legislation shortly after the Court of Appeal decision last June. We were then promised legislation prior to Christmas 2003, so that a special Select Committee could hear submissions during January and February. The date for introduction then became March - now it is "not before June 2004". It is possible that we will now not see it during this Government's remaining term, as it may not have a majority to pass it.

In an attempt to suppress more embarrassing political fallout, and to divert public attention away from Government mishandling of Treaty issues, the Prime Minister is now embracing the suggestion that we hold an inquiry into the place of the Treaty. Just a few weeks earlier the she had treated this same proposal with derision.

The Crown's policy objective announced last December was:

"To establish a comprehensive, clear and integrated framework which provides enhanced recognition of customary interests of whanau, hapu and iwi in foreshore and seabed, at the same time confirming that foreshore and seabed belongs to and is accessible by all New Zealanders."

The Waitangi Tribunals report on the Government's policy statement was harsh, rejecting any positive outcome for Maori. As the Tribunal saw it, this policy:

• removes Maori's ability to go to the High Court and the Maori Land Court for definition and declaration of their legal rights in the foreshore and seabed;

• in removing the means by which the rights would be declared, it effectively removes the rights themselves, whatever their number and quality;

• with no guarantee of compensation, the policy contradicts the presumption at law that there shall be no expropriation without compensation;

• understates the number and quality of rights that are likely to be declared by the Maori Land Court under its act. The Tribunal thought the Maori Land Court would declare that customary property rights exist, and at least sometimes these would be vested as a fee simple title;

• in place of the property rights that would be declared by the courts, the policy will enact a regime that recognises lesser and fewer Maori rights;

• creates a situation of uncertainty over what the legal effect of the recognition of Maori rights under the policy will be. They will not be ownership rights - they will not even be property rights, in the sense they will not give rise to an ability to sue. They may confer priority in competing applications to use a resource in respect of which a use right is held, but it is not clear whether this would amount to a power of veto;

• describes a process that is supposed to deliver enhanced Maori participation in decision-making affecting the coastal marine area, but which the Tribunal thought would fail, because it proceeds on a naïve view of the difficulties of obtaining agreement between Maori and other stakeholders on the changes necessary to achieve the required level of Maori participation;

• exchanges property rights for the opportunity to participate in an administrative process; and if the process does not deliver for Maori, they will get very little (possibly nothing) in return for lost property rights.

Much confusion has arisen between the terms "customary title", "customary use", "customary interests" and "customary rights". The Treaty Negotiations Minister and Attorney General has stated in Parliament:

"It is Government's policy to improve Maori participation in decision making through enhanced recognition of customary interests."

At the same time, Labour has been emphasising to non-Maori audiences that Maori will not enjoy any exclusive rights to the foreshore and seabed that are not enjoyed by all New Zealanders, and would not have veto rights through any decision-making processes such as RMA consents or marine permits.

Conversely, in making the Crown's submission to the Waitangi Tribunal, the Solicitor-General stated that the policy "conferred a real power to Maori including veto rights".

With such duplicity, it is little wonder Labour has managed to upset just about everyone. It is far from clear what rights, if any, are derived from customary title.

The Te Ture Whenua Act 1997, which was cited in the original Marlborough case, is particularly unhelpful. It is defective because it wrongly equates non-exclusive use rights with property ownership and title.

The Government is now stating that customary title is provided by mana and ancestral connection but, previously, the Maori Land Court had dismissed this concept. In a 1994 decision Judge Hingston said:

"We find there is no such and never has been until very recently a Maori concept mana moana; it has become the vogue probably since the fishery settlements began. We are of the view that it is rooted in greed and ignorance not tikanga Maori. It has no place in this matter before us."

In summary, it would seem that the Waitangi Tribunal examining the Labour Government's policy got three important things right and three wrong.

The Tribunal was right:

1. Government has insulted the rule of law. Claimants who succeed in court should not be deprived by a retrospective change to the law.

2. Labour's willingness to expropriate property rights without compensation breaches Treaty Articles II and III. Every citizen, including Maori, is at risk from Labour's contempt for property rights.

3. The proposed customary titles are worse than useless. All they promise is leverage for blackmail payments at consent hearings based on metaphysical values and nebulous law.

The Tribunal was wrong:

1. In asserting the widespread existence of the very rights the Court of Appeal warned would be rare if they are found at all.

2. The Tribunal failed to recognise its own culpability and inherent weaknesses. Maori Land Court judges sit on the Tribunal. There is no cross examination and frequently untested hearsay is accepted as fact. The Tribunal has displayed an appalling propensity to fiddle the law to suit the agenda of its membership. The Maori Land Court has become increasingly aligned to the Tribunal. It is little wonder that Government Ministers are now expressing grave doubts about the judicial integrity of the Maori Land Court and its ability to act impartially.

3. The Tribunal recommends further negotiation and a fresh deal. It criticises politicians who override the law and property rights, then says the parties should just try to get a better political deal, instead of going back to court.

In conclusion, I outline what a principled, colour-blind, rule of law and Treaty respecting government should do:

It would ensure the seabed and foreshore is in the same kind of clear ownership as the rest of New Zealand. Pre-1840 customary landholding was seriously deficient. There was no certainty of use and enjoyment, limited exclusivity, no security and limited transferability. Having established a legal framework any disputes about the nature and extent of rights should be resolved by the courts.

It is truly bizarre that Labour is now proposing to cover our coastline with forms of landholding that recreate many of the historic uncertainties.

The ACT Party organised a high level seminar in Parliament last year involving international experts. In formulating my views I have been guided by ACT's deeply held philosophical beliefs in the sanctity of property rights. The following is a framework that offers a solution to the foreshore and seabed impasse that would benefit all parties.

What should the framework provide?

• Most foreshore and seabed held in Crown ownership, with free public access and use.

• Existing registered titles over the foreshore and seabed would be respected.

• Ports, harbours, marinas and other facilities would have their own freehold titles.

• Marine farms would have freehold or long-term leasehold titles.

• Where a hapu or iwi showed uninterrupted exclusive customary use, they could now get a registered title recording their rights. Such titles would be transferable. If the Crown chose to cancel such title in the public interest, compensation must be paid.

• The Te Ture Whenua Maori Act would be amended to ensure consistency with this policy. In other respects the law would be amended to what applied before the court's decision in June 2003, which included the right of the Crown to grant title for specific identified uses including those based on customary use rights that are upheld by the courts.

• There would be no race discrimination or privilege over foreshore and seabed.

• There would be no enduring customary title.

• There would be no vague guardianship rights.

• There would be no special rights provided by statute to influence resource consents, marine permit applications or local authority governance.

Such a framework would be based on the following principles:

• Support for the rule of law.

• The courts are, in principle, the proper place where property right disputes are heard and where rulings should be made.

• It is essential that the Courts act impartially and apply proper rules of evidence.

• Where the Government chooses to expropriate an established property right in the wider public interest, it must follow due process on issues of consent and compensation.

It is my view, and that of the ACT Party, that we are more likely to achieve an enduring and harmonious outcome by working through the process on a principled basis - rather than Government selecting a particular outcome, which inevitably will not be universally agreed on.

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