A Pakeha perspective and summary - May 4th 2004
http://www.dannybutt.net/foreshore.html
Danny Butt db@dannybutt.net
1) The foreshore & seabed under this Bill is defined as the area *below* the high tide mark. The bill does not guarantee any rights of public ownership of or rights of access to the beach.
2) Coastal land adjoining the foreshore runs to 19 883km according to Land Information New Zealand. Of this, the Crown owns 7455km, local bodies own 6239km, and 6032km is privately owned. Of the private coastline, only one-third (2053 km) is registered as Maori Land (although Maori may also be represented among other private owners).
Most of the privately owned coastline has no public access. Only 187km (3% of private coastal land) has the "Queens Chain" guaranteeing public access to 20 metres of land adjoining the water. If the Bill sought to guarantee public access to the entire coastline, you can be sure that the Federated Farmers and other landowning groups would be jumping up and down about theft of their property rights.
3) The bill has nothing to do with access to the beach, but is about ownership and control of resources. Just checking.
4) The story so far:
i) The Crown assumed it controlled property rights to the foreshore and seabed. It based this assumption on legal rulings (such as "In Re the Ninety-Mile Beach [1963]") that applied British common law to state that on assuming sovereignty of New Zealand, the Crown claimed ownership of the foreshore and seabed regardless of existing property rights.
ii) In 2003 the Court of Appeal found that these legal rulings were contrary to other well-established interpretations of common law in relation to customary ownership (in New Zealand, Australia, Canada, and Nigeria among other places). Just like other property rights, native property rights established through customary use can not be extinguished without consent of the owners. The Court of Appeal ruled that there was no legal reason that the foreshore and seabed should be any different, and that these rights had not necessarily been extinguished. Therefore, the Maori Land Court should be allowed to hear cases relating to Maori customary rights over the foreshore and seabed and convert those into full property rights under Crown law where appropriate. The judges' view was that such rights would be difficult to establish, but that nevertheless this legal process should be allowed to take its course.
iii) The New Zealand Government decided that this was an "unintended consequence" of previous legislation (Te Ture Whenua Maori Act 1993), and has rapidly sought to introduce a new Bill preventing claims to customary rights in the foreshore and seabed being heard by the Maori Land Court, and therefore preventing any possibility of those rights being converted into property rights under Crown law. [See Note 1 below]
iv) At a series of consultation meetings, there was widespread rejection of the Crown's proposals by Maori. This does not appear to have altered the nature of the Bill in any significant way. The Bill is now before Parliament.
5) Note that through the Bill the Crown does not take ownership of any existing property rights to the foreshore and seabed recognised by the Crown (e.g much of the Viaduct and Gulf Harbour marinas). The *only* property the Crown assumes control of is land customarily owned by Maori which could in the future be recognised as freehold property. It is, clearly, a racist law. Maori are the only people affected by it.
6) As Peace Movement Aotearoa and others have observed, the proposed bill is a breach of human rights that state that all people should have a right to due process through their country's court system. Leon Penney points out that this happens through two fronts: "Firstly, the Crown fought Maori through the court process and when it lost in the Court of Appeal it has decided to introduce legislation to overrule the Court decision. Secondly, the Bill denies Maori the ability to use the accepted court process to gain title. This has been described by one retired Maori land Court Judge as similar to what has happened in Zimbabwe."
7) The Waitangi Tribunal, the commission established to make recommendations on claims relating to the Treaty of Waitangi, found the Bill in direct contravention of Articles Two and Three of the Treaty of Waitangi [1840]. The Bill also disadvantages property rights of coastal Maori compared to other property rights holders, including other tribes (for example, Maori ownership of some lakebeds has been recognised by the Crown). The Tribunal's first recommendation is that the Government sit down with Maori and properly explore the options which are genuinely available, which the Government has not been prepared to do yet. The Tribunal thought that the Crown's principles could be achieved in a Treaty-compliant regime. "Maori are realistic," said the Tribunal. The Tribunal's next recommendation was that the Crown do nothing. There is no need for this Bill.
The Government has described the Tribunal's report "dependent upon dubious or incorrect assumptions" and has failed to make any significant acknowledgment of the Tribunal's findings. The Government continues to paint any opposition to the Bill as "radical". This should be seen as surprising given the Tribunal's unparalleled legal expertise, and the equal representation from Maori and Pakeha in the Tribunal's distinguished membership. The Tribunal's report (particularly the conclusion and recommendations) describes the situation in clear English with a minimum of legalese and should be read by everyone seeking to understand the issues.
8) The Bill does not rule out court action by Maori to establish customary rights. But if that action is successful, Maori are not left with ownership but with "entitlement to some form of redress". If they prove an ancestral connection to an area of foreshore and seabed, they can gain "increased participation in management of that area." Pretty vague isn't it? Think about how you'd feel if it was your beach house that was being taken.
9) As many claimants to the Tribunal made clear, the public has little to fear from allowing Maori ownership of parts of the foreshore and seabed to be established through the courts. Not only is the area of coastline affected relatively small (particularly compared to the coastline the public are currently excluded from), but level of public access is unlikely to change (think of Lake Taupo, owned by Ngati Tuwharetoa). The Crown's track record in maintaining assets in the public interest, however, should give some cause for concern (think of Telecom).
10) Opposition to the Bill comes not only from Maori or the Left. Even Roger Kerr, executive director of the Business Roundtable, said that private rights to the foreshore and seabed need to be upheld, and "this includes legitimate Maori customary rights to title." On the one hand the Government is attempting to facilitate Maori development, while on the other it is taking significant resources which may by rights belong to Maori and are of great spiritual, social and economic importance to them.
11) The Bill should be of concern to all New Zealanders. The implications of the Bill are larger than "race relations" and reach to the very basis of our democracy. The effects will be with us for a long time. While those disadvantaged by the Bill are Maori, the Bill highlights the Government's willingness to overturn established common law rights to get what it wants. It also shows the Government's unwillingness to listen to either those disadvantaged by its policies, or reputable expert opinion.
12) See point 5. This is a racist Bill that should not become law.
[1] Through the Treaty, Maori ceded to the Crown the right of pre-emption. If Maori sell any of their property rights it has to be through the Crown process. Leon Penney gives an excellent summary of the Crown's process for recognition of customary rights and the way they become Crown-approved property rights:
"1. Through evidence of customary usage the Maori Land Court recognises that a certain area had people undertaking a customary activity. It then surveys off that area as customary land.
2. The Maori Land Court will then determine who the people are who had customary rights for the surveyed area.
3. The Maori Land Court can then issue a Certificate of Title to those people. This is legal recognition of their property right to that land.
4. Those people then have Title to the land and can do whatever they like with it, subject to all NZ laws (eg RMA).
The above process is how the majority of land in New Zealand gained legal freehold Title. The land you own most likely went through the above process and was sold by the original Maori owners."
Ansley, Bruce. "Stakes in the Sand", New Zealand Listener May 1 2004
COURT OF APPEAL OF NEW ZEALAND, NGATI APA, NGATI KOATA, NGATI KUIA, NGATI RARUA, NGATI TAMA, NGATI TOA AND
RANGITANE V THE ATTORNEY-GENERAL CA173/01 [19 June 2003] (from 487KB PDF from teope.co.nz)
=> http://tinyurl.com/23nh8
Cullen, Michael. Foreshore and Seabed Bill April 8 2004
=> http://www.knowledge-basket.co.nz/gpprint/docs/bills/20041291.txt
Jackson, Moana "Like a Beached Whale - A Consideration of Proposed Crown Actions Over Maori Foreshore"
=> http://aotearoa.wellington.net.nz/he/taku.htm
Mutu, Margaret "The Waitangi Tribunal's Report on the Crown's Foreshore and Seabed Policy" - a summary
=> http://www.converge.org.nz/pma/fsinfo.htm
Peace Movement Aotearoa, "Government foreshore and seabed policy breaches basic human rights"
=> http://www.converge.org.nz/pma/fs231203.htm
Tunnah, Helen, "Compensate Maori for seabed: Roundtable", New Zealand Herald October 6 2003
=> http://www.nzherald.co.nz/storydisplay.cfm?storyID=3527213
Waitangi Tribunal, "Report on the Crown's Foreshore and Seabed Policy" (Wai 1071)
=> http://www.waitangi-tribunal.govt.nz/reports/generic/wai1071foreshore/
Danny Butt
http://www.dannybutt.net
May 4, 2004
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