Pacific Ecologist: R. Boast On Foreshore & Seabed

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Government proposals in Aotearoa to remove Maori property rights only to the foreshore and seabed are discriminatory, Professor RICHARD BOAST reports. In seeking to overturn decisions of the courts and the Waitangi Tribunal, the government is upsetting race relations as well as compromising the integrity of the judiciary and creating a political and constitutional crisis.

Foreshore/seabed crisis

Aotearoa/New Zealand is currently embroiled in a major political and legal controversy over Maori ownership, and claims to the foreshore and seabed. This debate has in turn become a catalyst for a broader, increasingly politicised public debate about race relations and the Treaty of Waitangi, an issue which seems to have a cyclical role in New Zealand public affairs, sometimes dominating public debate, sometimes receding into the background. At the moment it’s at the forefront of public and political attention.

The foreshore and seabed issue is basically a legal problem. The legal doctrine of Native title is part of New Zealand law, just as it is part of the law of Australia, Canada and the United States. This doctrine, part of the Common Law, holds that on acquisition of sovereignty by the Crown the property rights of the indigenous population continue in force and effect until such time as they have been legally extinguished. New Zealand Courts have now established the government never has extinguished Maori customary title to the foreshore and seabed, so the way is open for Maori claims to at least potentially be made to these areas in the Courts.

The legal problems relating to the foreshore and seabed have been known for some time. They have been repeatedly pointed out in reports and law review articles. Politicians, however, do not pay attention to legal problems until they have to, and the recent decision of the Court of Appeal has taken the political establishment and the public by surprise. Some ill-judged reactions by politicians have led to angry Maori responses, and the issue has snowballed in the midst of a not very well-informed but vociferous public debate. Few things touch the New Zealand psyche more than a perceived threat to the cherished right of a day at the beach.

The Court of Appeal decision in Ngati Apa

The starting point was the decision of the New Zealand Court of Appeal in Attorney-General v Ngati Apa, released in June 2003.[i ] The litigation which led to the Court of Appeal decision originally commenced in 1997, and was begun by eight iwi (tribes) of the northern South Island who were concerned about local government’s marine farming policies. The case made its way slowly through the court hierarchy, from the Maori Land Court to the Maori Appellate Court and from the High Court to the Court of Appeal. The Court of Appeal took almost a year to release its judgment: plenty of time, one would think, for officials and politicians to formulate some kind of measured response in case the government lost, which was at least possible.

The legal point at issue related to the jurisdiction of the Maori Land Court, a specialist court which has had a long and somewhat colourful history.[ii ] The Maori Land Court originates from the Native Lands Acts 1862 and 1865. Today the Court has jurisdiction over Maori land, a particular category of land in New Zealand making up about 5% of the area of the country. One of the Court’s tasks historically was to conduct investigations into areas of “Maori customary land” – land held on Maori customary title – and to convert such customary titles into Crown-granted freeholds. The issue, strictly speaking, was whether the Maori Land Court could today conduct investigations of title into the foreshore and seabed and – in given cases – convert those areas into private title. Until this time the government and the public had assumed the foreshore and seabed was Crown land. The case raised the spectre of foreshore and seabed land becoming privately owned by Maori groups who might then obstruct public access.

With respect to the foreshore, the question was whether an earlier decision of the Court of Appeal, In re the Ninety-Mile Beach, decided in 1962, was rightly decided.[iii ] That case reflected a legal approach to Native title which, however appropriate at the time, was now no longer in accordance with the law of native title as analysed in such contemporary cases as the High Court of Australia’s decision in Mabo v Queensland (No. 2). Essentially the Court of Appeal did four main things. It overruled its own earlier decision in In re the Ninety-Mile Beach, significant in itself. The New Zealand Court of Appeal can of course overrule itself, but it is usually reluctant to do so given the consequences of over-turning settled rules of law.

Secondly, the Court held the Maori Land Court does indeed have jurisdiction to conduct investigations of title to the foreshore and seabed, which amounts to essentially saying that this area is Maori customary land and does not, in fact, belong to the Crown absolutely.

It should be emphasised that the Court’s conclusions have nothing to do with New Zealand’s sovereignty in international law or with the sovereignty of the Crown within the country. The foreshore and the seabed is undoubtedly part of New Zealand and is no different in that sense from Mt Cook, Lake Taupo or the Auckland motorway. Rather, the issue is whether the foreshore and seabed is owned fully and completely by the Crown as property – in the same way that the Crown owns the land underneath parliament buildings in Wellington. The essence of the Court of Appeal’s conclusion is that the seabed and foreshore may not necessarily be Crown property in this absolute, unqualified sense.

The Court of Appeal found further that Maori customary title to the foreshore, if any, has not been extinguished by any general enactment. The Court expressly declined to consider the effects of “area specific” legislation which may have extinguished native title to particular defined portions of the seabed. Nor did it consider the effects of earlier Crown deed purchases from Maori. Some of these may have extinguished Maori title in any given case, but that will depend on the circumstances, the language used in the deed and similar considerations.

Lastly, the Court of Appeal rejected the ingenious Crown argument that the reference to “land” in Te Ture Whenua/Maori Land Act 1992, which is the statute from which the Maori Land Court derives its powers, excludes the foreshore and seabed.

Government Reaction

Immediately following release of the Court of Appeal’s decision the Prime Minister and other politicians moved quickly, perhaps too quickly in the view of some, to announce that public rights of access to the seabed and foreshore were not going to be compromised. In August 2003 the government released a discussion paper, Government Proposals for Consultation. This document was not so much a set of “proposals” as a statement of the policy decisions already taken. It set out the “four principles” which have remained central to the approach of the government to the issue to date. The principles were (ibid, 4):

The Government Proposals went on to make it very clear there could be no possibility of the Maori Land Court being allowed to issue freehold titles (p 6):

“First, the Court of Appeal judgment has raised the possibility of new private titles being created over parts of the foreshore and seabed as the result of claims for customary rights, which would give owners the power to sell those spaces and so exclude other people from them. The government has made it clear that such an option is not acceptable as there has been an assumption that, in general, there should be open access and use of the foreshore and seabed for all New Zealanders.”

Furthermore (ibid, p 20):

The government’s policy is to remove private title from the foreshore and seabed, or to regain public access and use over remaining areas, wherever that is possible and appropriate. It intends to deal fairly and equitably with all New Zealanders whose interests might be affected as it pursues this policy over time. For this reason, the government does not intend to allow freehold title to be created as a result of Maori customary interests either.

To its credit, the government has certainly not proposed that Maori customary rights to the foreshore and seabed simply be cancelled. It has tried to balance competing demands for unrestricted public access with recognition of customary rights by proposing a new statute-based system. This involves changing the existing statutory jurisdiction of the Maori Land Court and the High Court with respect to the foreshore and seabed after Ngati Apa and replacing these with a remodelled new process, to be conducted by the Maori Land Court, which recognises Maori customary rights. The proposed system, however, stops short at allowing any possibility of freehold grants.

In December the government released a much more detailed policy document, titled Foreshore and Seabed: A Framework. The December Framework is essentially the same as the August Proposals, although there are some differences of emphasis. Plans to eliminate non-Maori private foreshore titles have been quietly dropped. This does open the government to the accusation of being more willing to protect existing Crown-granted freehold rights of non-Maori than the property rights of Maori as recognised by the Court of Appeal. The December document contains some vague indications that customary rights might include a commercial component of some kind, although the details are unclear.

The December policy document was based on the assumption that the seabed and foreshore would be vested not in the Crown – the standard formula – but in the people of New Zealand. This was said to be “less provocative”, but Maori were sceptical. Lawyers for Maori claimants in the Waitangi Tribunal – including the author – argued the proposed formula was a distinction without a difference, and amounted to a nationalisation of the foreshore and t seabed just as much as if the area was to be vested in the Crown. The Waitangi Tribunal agreed. The current Foreshore and Seabed Bill, the latest guide to the government’s intentions (April 2004) has shifted ground and now states explicitly that foreshore and seabed will be vested in the Crown.
Waitangi Tribunal Inquiry

It was inevitable the Waitangi Tribunal would quickly become involved in the seabed and foreshore affair. (The Waitangi Tribunal, deriving its powers from the Treaty of Waitangi Act 1975, is a permanent commission of enquiry with jurisdiction to report on Crown acts, omissions and policies that may be in breach of the principles of the Treaty of Waitangi). Applications for urgency were filed by a number of groups with the Tribunal on 22 August. At a judicial conference on 10 September Crown counsel noted urgency was not opposed. In an oral decision on the same day Judge Wainwright said the key issue influencing the Tribunal’s approach was that its report must be issued in time to “influence the Government’s decision-making on the foreshore and seabed.” The government advised it would be finalising its policy at the end of November, so the Tribunal’s report had to be available before then. However Judge Wainwright made it known the Tribunal was “disinclined to schedule an urgent inquiry to focus on the process” (emphasis added: that is, the Tribunal did not want to deal with allegations that there had been inadequate consultation but wished to focus whether on whether the government’s announced policy complied with the principles of the Treaty). The hearing was originally set down for 5-7 November.

Following delays in the government’s legislative timetable and a number of further judicial conferences to refine the issues, procedure and evidence, the Waitangi Tribunal sat over six days on 20 to 23 and 28 and 29 January 2004 in Wellington. The hearing was presided over by Judge Carrie Wainwright, a judge of the Maori Land Court, assisted by Joanne Morris and John Clarke (who is Maori). Most of the iwi (Maori tribes) of New Zealand were present - although some major iwi were not involved or formally withdrew, preferring to negotiate the issue behind the scenes. The Crown was represented by the Solicitor-General, Terence Arnold Q.C. and Michael Doogan of the Crown Law Office. Maori were represented by a number of specialist counsel. The Crown called as an expert witness Dr Paul McHugh, of Sidney Sussex College Cambridge, one of the world’s leading scholars on the law of aboriginal and native title. On the Maori side a great deal of traditional evidence was called to establish the importance of the seabed and foreshore to Maori. Essentially, however, the main arguments were legal. What were the legal options post-Ngati Apa? How were those options constrained by the Crown’s proposed policy? Was the policy in breach of the principles of the Treaty?

With impressive speed the Tribunal released its report on the foreshore and seabed policy on 4th March.[iv ] The Tribunal concluded the Crown’s policy is indeed in breach of the principles of the Treaty of Waitangi, both in terms of Article II (which guarantees certain fundamental Maori rights) and Article III (which protects rights of Maori as British subjects). While breaches of the Treaty can sometimes be justified, those criteria are not met in the present circumstances:[v ]

“[T]here is no overriding need for the foreshore and seabed policy in the national interest. The Crown is not driven to act, and so it lacks the necessary moral and legal grounds for overriding the guarantees made to Maori in article 2 of the Treaty.”

Essentially the Crown intends to legislate away existing Maori property rights, offering in exchange other legal processes which are in some respects unclear and which are not as valuable as what will be taken away.

The Tribunal accepted arguments of counsel for Maori that the Crown’s proposed legislation is, in essence and effect, discriminatory, given it abolishes property rights of Maori and no-one else. It said:[vi ]

“[T]he common law rights of Maori in terms of the foreshore and seabed are to be abolished, and their rights to obtain a status order or fee simple title from the Maori Land Court are also to be abolished. The removal of the means whereby property rights can be declared is in effect a removal of the property rights themselves. The owners of the property rights do not consent to their removal. In pursuing its proposed course under these circumstances, the Crown is failing to treat Maori and non-Maori citizens equally. The only private property rights abolished by the policy are those of Maori. All other classes of rights are protected by the policy. This breaches article 3 of the Treaty.”

Government’s response to Tribunal’s report

In reacting to the Tribunal’s report, the government was mindful of the flood of apparent public support for a recent speech by the leader of the opposition, Don Brash, criticising quota systems for Maori students in tertiary institutions and references to the Treaty of Waitangi in legislation. Mr Arnold’s attempts as Crown lawyer to convince the Tribunal of the value and usefulness of the proposed alternative regime were turned against the government by Mr Brash and his colleagues as merely demonstrating its plans to favour Maori aspirations at the expense of the public good. The political milieu of the moment thus propelled politicians, notably Dr Cullen (Minister of Finance) to dismiss the Tribunal’s report and unwisely to suggest the Tribunal does not know what it’s talking about. The government plans to legislate anyway, he said.

Recent Developments

A recent development, complicating matters even further, came from the unexpected quarter of the Maori Land Court itself. Following the Court of Appeal’s judgment in Ngati Apa Maori groups not unnaturally commenced filing applications in the Maori Land Court seeking investigations of title into defined areas of foreshore and seabed. The Court let the applications pile up, awaiting events in Wellington, but of course the Court, under a duty to hear the cases before it, cannot do so indefinitely.

At a pre-trial hearing at Gisborne in early March Judge Wickliffe, sitting as duty judge for the Court’s Tai Tokerau (East Coast) division, rejected an application from the Crown to stay all current foreshore and seabed cases. The Crown’s application was based on two grounds, that the Crown intends to legislate and because the Court of Appeal decision in Ngati Apa has been appealed by some of the parties to it – not, ironically, the Crown as it happens – to the Privy Council. A formal judgment has not yet been released. The application for a stay was opposed by lawyers acting for various Maori groups, principally on grounds there was no certainty about the government’s legislative timetable and that the appeal to the Privy Council in another case had no application to the cases before the Court.

Again, politicians made ill-considered public statements. In a breach of the constitutional convention that executive government does not criticise decisions of the ordinary courts the Prime Minister drew attention to the tribal connections of Judge Wickliffe – who has in fact withdrawn from further dealing with the case. The Prime Minister even suggested the Maori Land Court might have better things to do with its time.

In short, the seabed and foreshore issue has led to a political and constitutional crisis, regarding the conventions which govern the relationship between the executive government and the courts. It’s unusual, to say the least, for a Minister of the Crown to say that a court of law might be wasting its time. Politically, the issue has caused significant strains within the Labour Party and with the coalition agreement between Labour and the United Future party. This crisis, constitutional and political, will continue to unfold unless some sensible and pragmatic steps are taken soon. There is already discussion of Maori withdrawing support from the Labour party (Maori have historically tended to vote Labour) and setting up a Maori political party.

Whether the government will have the numbers in parliament to enact its foreshore and seabed legislation is not certain, being dependent on the stance of the Labour government’s Maori MPs. One constructive suggestion which has emerged is a possible royal commission on the status of the Treaty of Waitangi and the constitution generally, an idea raised initially by the Prime Minister and now being considered by the Cabinet. The current foreshore and seabed bill introduced in April is essentially a political compromise, arising out of an arrangement between the Labour government and Mr Peters’ New Zealand First party, given that the government’s normal coalition partners, the Greens and United Future, albeit for quite different reasons, are not prepared to support the legislation.

Arguably the current crisis need not have happened at all. Had the government simply appealed the original decision, had it entered into open-ended consultation with Maori and other public sector interest groups, a compromise position could probably have been found and certainly the matter could have been rapidly defused. Instead the government seems unable to stop itself making ill-judged, off-the-cuff remarks about decisions of the courts – first with the Court of Appeal decision itself, then with the Waitangi Tribunal’s report and now with Judge Wickliffe’s recent decision. This has irritated Maori considerably and done nothing to resolve or clarify matters. Now a bill has been produced as a result of a political tradeoff which Maori are very hostile to and which can only generate continued controversy. Government’s failure to prepare in advance for the consequences of possible defeat in the Court of Appeal, evidently treating the litigation as just another case it was involved in, has not served the country well.

Professor Richard Boast, LLM (Victoria University of Wellington) MA (University of Waikato), Barrister at Law and Reader in Law, Victoria University of Wellington. The author acted as counsel for a number of Maori iwi (tribes) in the Waitangi Tribunal’s foreshore and seabed inquiry and also appeared as counsel for some of the East Coast iwi in the recent Maori Land Court decision referred to in this article.

FOOTNOTES:

i. Ngati Apa and others v Attorney General and others, [2003] 3 NZLR 643.

ii. On the history of the Maori Land Court see David V. Williams, ‘Te Kooti Tango Whenua’: The Native Land Court 1864-1909, Huia Publishers, 1999; Richard Boast, Andrew Erueti, Doug McPhail, and Norman F Smith, Maori Land Law, 2nd ed., LexisNexis, 2004, 65-119.

iii. [1963] NZLR 477.

iv. Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy, Wai 1071, Wellington 2004.

v. Ibid, p 129.

vi. Ibid.

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