Commercial Development Allowed Under Customary Title

The Government’s plans for the Foreshore and Seabed could open the way for foreign commercial developments on Maori land.

Speaking today on TV3’s “The Nation” Minister for Treaty Negotiations Chris Finlayson said hapu or iwi that secured customary title would be free to enter into commercial development partnerships.

“They would be subject to the Resource Management Act and subject to the other, if you like, general pieces of legislation.

“It's not proposed that this would be a sort of a self governing entity once it was established, so any kind of development would be subject to the usual RMA principles.”

Asked by Duncan Garner if this meant yes, the minister replied that only the usual checks and balances established in the RMA would apply.

However, Mr Finlayson denied customary title amounted to freehold ownership.

“What I've specifically said is that we are not going bring it within the Land Transfer system.

“It would be a defined usage, and one of the things we're talking about or the proposal talks about is that it be unable to be sold.”

'THE NATION'
CHRIS FINLAYSON interviewed by DUNCAN GARNER

DUNCAN With me this morning is Chris Finlayson, Minister of Treaty Negotiations, and currently on the road holding consultation hui over the government's proposals for the future of the Foreshore and Seabed, that deals with the demand for the repeal of the Foreshore and Seabed Act from the Maori Party which we heard about earlier in Sarah's story which obviously goes to the very core of the government's relationship with the party. I spoke to Mr Finlayson before he left for today's meeting in the Bay of Plenty. Good morning Minister.

I just want to get to your idea of this public domain which is what the government's put up. Hone Harawira from the Maori Party says it is a dumb idea, yet you are going to be with him travelling around the country over the next week trying to sell this idea, how do you on earth reconcile the differences between the two parties as you head into these meetings?

CHRIS FINLAYSON – Minister for Treaty Negotiations
Well I actually think when you strip away terminology we're not too far apart because I'm saying that public domain is a useful staging post so that we can enable folk to investigate customary title. Hone says well my approach is that we've always been here, and why should we have to prove anything. So I think if you drill down into the substance of it, the differences are not insurmountable, and I think the worst thing we could do here is get caught up on terminology.

DUNCAN Well what is actually wrong with Mr Harawira's idea of effectively Maori title, inalienable, you can't sell it, absolute public access to all New Zealanders, what is wrong with it, is it just that it's not politically viable for you?

CHRIS Well I think we agree on a lot of things, we agree on inalienability, we agree on public access, what I'm simply saying is that public domain provides a useful starting point, if you were to say absolute Maori ownership, I think the question that would inevitably arise Duncan is, well which Maori, which iwi, which hapu, and I think there could be a lot of cross claims, so I think that the proposal that we've put forward is a more sensible way of dealing with it, but look I'm out listening to folk and I'll see what they’ve got to say.

DUNCAN I just want to drill down into the report which came out last week about customary title, clearly the government wants to award customary title, let the courts have a look at it at least. What is customary title?

CHRIS There is absolutely no law on customary title in New Zealand, it's a very vague concept, so what we're saying is it's a constrained form of property right, it doesn’t inhibit public access, it's unable to be sold, there could be a title issue but not under the Land Transfer Act which deals with land, and so we're not talking about that type of title, but a title could be issued under this legislation, and there'll be rights to develop and so on, so it's if you like a constrained property right, which will be available to those who can establish that they're entitled to it.

DUNCAN So would it allow for instance an iwi with a customary title say in the Bay of Plenty to do a partnership deal with if you like the Chinese government who come forward with a 100 million dollars and say we want to build a number of resorts on your land, lease it to us over 100 years, would Maori with customary title and iwi be able to get away with that?

CHRIS Oh yes but they'd be subject to the Resource Management Act and subject to the other if you like general pieces of legislation, it's not proposed that this would be a sort of a self governing entity once it was established, so any kind of development would be subject to the usual RMA principles.

DUNCAN Yeah but what you're saying is it's a yes because the Maori have in your report major rights of veto, and if they can go in and do a deal with a foreign government or a foreign entity who has the money to develop, then what you're arguing today is, yes that could happen?

CHRIS Yeah and of course there's the Overseas Investment Commission and those sorts of requirements as well.

DUNCAN Winston Peters says that it is a property right, Tariana Turia says it is a property right too, Peters goes as far as to say it's freehold title. Can you rule it out that it's freehold?

CHRIS I'm sorry it's wrong because what we are saying here is we're establishing within the context of any reform, a particular type of property right, and what I've specifically said is that we're not gonna bring it within the Land Transfer system. So he is talking about the Land Transfer system and the concepts of freehold title within that kind of concept, we're not talking about that, he's wrong.

DUNCAN So within that torrin system of freehold title or fee simple title, Maori would have very limited usage of this land couldn’t be sold, can you just explain that?

CHRIS It would be a defined usage, and one of the things we're talking about or the proposal talks about is that it be unable to be sold.

DUNCAN Right what I want to look at is that developmental rights, and the rights of veto in your report and I want to quote back your report. The coastal hapu or iwi would have the right to decide whether an activity requiring a coastal permit could be progressed by the local body by the local council the regional council or whatever. That would see Maori have massive rights of veto in what happens on the foreshore wouldn’t it?

CHRIS Well I think avoid the adjective, they would have certain rights in relation to the foreshore and that is provided they can establish what they're required to establish. We're not talking about this thing in the abstract, we're talking if someone has customary title certain rights will flow from that, just as happens with ordinary property owners, and I can't see that that’s necessarily a bad thing.

DUNCAN No but if someone let's say wants to build a marina and like has come up before in the Marlborough Sounds or say in the Bay of Plenty, and the local iwi said no, that effectively leaves it in the power of the local iwi doesn’t it, to stop these things happening?

CHRIS Well in certain circumstances it could, and I can't see that that’s going to be any different from the person who owns privately owned land, and there are twelve and a half thousand properties around the coastline that include foreshore and seabed for various historical reasons, that they could do exactly the same.

DUNCAN There is a bloke in Golden Bay for instance who wants to build a small wharf, I mean doesn’t this effectively allow Maori to stop that person in their tracks unless they can come to some sort of arrangement outside the law where perhaps money changes hands, I mean this is what happens isn't it?

CHRIS Yeah but your hypothetical's too general. What you're saying is someone wants to build a wharf over an area which is encompassed by customary title. Well if they're wise the best thing they would do is talk to the local iwi or hapu.

DUNCAN Yeah and if the local iwi say no initially, do you expect that perhaps money could change hands over a period of months or years to see development go ahead, I mean that’s entirely possible isn't it?

CHRIS Well I would imagine in the ordinary course of things there'd be a negotiation.

DUNCAN I just want to look at mining if we can, I mean that 2004 Foreshore and Seabed law that Labour brought in, basically vested minerals in the Crown. If you are entirely going to repeal, why don’t you effectively look at that area because Maori would like minerals wouldn’t they, they would like to look at those minerals, yet if you repeal you want to hold on to the right that the Crown owns the minerals don’t you?

CHRIS Well there are two classes of minerals I think we have to talk about, because pre 2004 petroleum had been nationalised, in fact was nationalised by the Labour government in 1937, silver and gold and uranium have always been nationalised minerals, so then there are the other minerals, you're quite right that that is an issue that I imagine folk are going to want to raise with me, and I'm listening to what they say, and I'm also talking with Gerry Brownlee about that issue.

DUNCAN So are you effectively saying here this morning that you perhaps are willing to compromise around that minerals issue because it's quite important to Maori, well certainly the Maori I've spoken to.

CHRIS Oh I think the socalled traditional reserved ones, Gerry's already said are off the table, I'm prepared to hear what folk have to say in the course of my hui and public meetings, and then I'll report back to the Cabinet.

DUNCAN And if they say to you that we would like those select minerals taken out of any repeal, what do you say to that?

CHRIS Oh as I say I'm about to embark on a number of hui, and in public meetings and then I'll be reporting back to Cabinet, and then I'll be able to report to you in late May.

DUNCAN So you're not ruling out a possible compromise there are you, because right now as we look at your proposal it basically repeals and holds on to that, so you're not ruling out a compromise with iwi after this series of hui?

CHRIS Oh I'm saying that I can rule out petroleum, uranium, silver and gold, I'm prepared to listen to other people on those other minerals.

DUNCAN I just want to go back to sort of I asked you about earlier, around Maori title. Do you totally rule out a compromise around Maori title with the fact that it can't be sold and with all access to New Zealanders, because why wouldn’t that be acceptable?

CHRIS Well I think that the public domain concept is one that will when explained to people be embraced by most of the population. Look we've set out a number of options in the paper, and I'm interested to hear from people, I think absolute Crown ownership was a problem with the 2004 Act, I think we can dismiss that. There's the possibility of Crown radical title, well we could listen to what people have to say on that, and the other options, but I do think Duncan that public domain will work, and work well.

DUNCAN And do you think you can convince the Maori Party?

CHRIS I'm going to do my best and that’s what politics is about, politics is as I say in the paper, is not about dogmatism, it's about reconciling interests for the benefit of everyone.

DUNCAN And also around customary title you're also of course the Treaty Negotiations Minister in charge of much wider Treaty settlements and Treaty settlements to come. Is the issue of customary title now likely to take a much greater interest in some of these iwi that come to your table and say let's do a deal, and is customary title now likely to be one of the negotiating points, one of the new negotiating points?

CHRIS Yeah well I think Treaty negotiations are ever evolving, like for example in the last few years we've had issues arise about co-governance of natural resources. It could well be that customary title is one of those issues that are put on the table and I say that because in the last couple of days I've met with iwi groups who have been negotiating under the 2004 Act, and some of them would like to deal with foreshore negotiations at the same time as their Treaty negotiation, so I'm open to that. I don’t think these sorts of negotiations should ever be closed or the terms dictated by government, if people want to raise issues good on them.

DUNCAN So you'd be willing to sit around the table with iwi in future negotiations as long as you're the Minister and have customary title looked at outside of the courts obviously which is what this process allows, correct?

CHRIS Oh yes look I – it may seem to be contradictory but what we're trying to do is re-establish that fundamental right of access to justice, which I think most people would agree was a major problem with the 2004 Act. Having said that, I'd be much happier to negotiate with people because I'm a lawyer, I know what litigation costs, I know the time that’s involved and the effort that’s involved, and if things are able to be sorted out through negotiation, I think that’s great.

DUNCAN So you're telling Maori not to go to court, you're telling them to come to the Beehive aren't you?

CHRIS Well I'm not telling them anything, but I'm suggesting to them that it's a much better way to negotiate than to instruct lawyers.

DUNCAN I just want to finally finish off with – could it be that absolutely nothing changes here, if there's no kind of compromise that can be reached, that the status quo remains. Is that an option or is it an empty threat?

CHRIS Well I'm actually very optimistic that we'll be able to sort something out. I think the broad parameters are there, the basis for reconciliation is there, I don’t want to go into the what ifs if things don’t work because it's my brief to make sure they do work and I'm going to do my level best to see that that happens.

DUNCAN Alright, Treaty Negotiations Minister, Chris Finlayson, thank you very much for joining us this morning.

ENDS

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