No one will own the seabed and foreshore

The Gisborne Herald has reported that the Government has proposed that, instead of identifying an owner of the foreshore and seabed, new legislation would provide that no one owns, or can own, the foreshore and seabed. This area would be called a public domain, which should greatly please Peter Dunne. The proposal would recognise New Zealanders' rights and interests rather than being concerned with ownership.

Coastal Maori will be able to go to court or negotiate with government to have customary title and rights recognised if new government proposals are adopted. More here

NB discussion document is here and here [PDF]

Goff’s Nationhood speech

Rather than do an immediate post on Goff’s Nationhood speech, I thought I’d wait rather than attack Goff for a racist speech that Shane Jones vetted before delivery.

What Goff appeared to want to do is open up a split within the Māori Party at the same time as divide a wedge between the Māori Party and National. He wanted to play the race card, but in a non-racist way. His speech was not racist like Brash’s 2004 Nationhood speech, but Goff pulls on the same strings, articulating a latent belief that Māori were getting special treatment at the expense of other New Zealanders.

Goff may be correct in calling the emissions trading scheme a “shabby “political deal, (twice), but it is a bit rich saying that it will harm New Zealanders for generations to come when he has said that Labour will repeal the ETS when in power, thus minimising that harm.

Goff attacked John Keys leadership, saying it would lead to a country with "one New Zealander turned against another, Maori against Pakeha". Yet Labour has led the way on this. In addition, it has now withdrawn an offer to create enduring consensus over the Foreshore and Seabed legislation.

Perhaps Goff wants to see the Māori Party destroyed - hence the hope of engineering that destruction - as he sees it as the only way Labour can form a government in 2011. Like Helen Clark before him, he could well be willing to reopen wounds in race relations to gain power, and use the race card to expose any rifts between National the Māori Party as they appear, in the hope that NZ First will come back in 2011. And that is a real pity.

Sure, the Treaty of Waitangi settlement process should not be used as a basis for privileged treatment of certain iwi, thus causing disagreement among Māori - but Goff’s speech was not exactly about kotahitanga either. His unsubstantiated implication was that Key’s lack of criticism of Harawira’s mofo comments was because he wanted to get this “shabby political deal” enacted.

Goff’s comments that the Foreshore and Seabed legislation that deprived Māori to go to court was ‘working well’ is contrary to Labour’s submission to the Foreshore and Seabed Ministerial review. It’s a U-turn in Labour policy. Warning that repeal would make ‘wounds fester’ was a politically irresponsible statement to make, given that it was Labour who did the wounding that initiated the formation of the Māori Party.

Labour still sees the Māori Party as the last cab off the rank. Now that the party is bleeding supporters who are looking for another cab; will they go to a party that is happy to exercise wedge politics to open up a boiling pot in race relations, ask questions and demand change in Māori Party leadership, or be politically apathetic.

Goff, in trying to articulate concerns about emerging problems seems unable to offer practical solutions to problems in race relations and unfair treatment.

But that’s what is needed now. Extending a narrative to touch a nerve for short –term exposure is not going to do much. Labour needs a new leader - and quickly.

Indigeneity and the Foreshore and Seabed

One thing I, perhaps like Lew at Kiwipolitico, realised when reading bits of the the ministerial review of the Foreshore and Seabed legislation, was that the review was conducted within principles of indigeneity with an explicit Treaty-based approach. Indigeneity is not exactly the hot topic within the National Party, but course having Maori academics as panelists on the ministerial review would have certainly pleased the Māori Party, as a panel that operates under the politics of indigeneity would recommend repeal of the legislation.

Indigeneity is greater than a bicultural partnership or a minority status: Indigenous rights predate citizenship and are often articulated by Māori to enhance a greater control over their lives and resources, including in the case of the foreshore and seabed. Māori don’t desire exclusive access to the beaches, but they do desire to have the same property rights as everyone else. This doesn’t mean the desire better ones, but you certainly wouldn’t blame them if they complain when they get lesser ones, particularly when a government enacts these lesser rights.

So, should the Māori Land Court have jurisdiction to consider title to the Foreshore and Seabed? And if it does, should customary (or even freehold) title be granted? That depends on whether you think "one law for all" means that all have the same rights. It depends whether you think the Treaty of Waitangi is a "legal nullity" or part of our unwritten constitution. To some extent, it depends on whether you think customary rights are inherent because of Māori first occupancy, rights that were not explicitly extinguished. And it’s clear what the report writers thought. In just 20 or so words into the report they said:

We consider the whole coastal marine area is subject to customary interests unless expressly extinguished by some specific act.

But customary interests were not extinguished by some specific act. As the Foreshore and Seabed Act legislates Māori as lesser citizens, it is to be repealed. At least that should be the reason for repeal. But according to this media report, some National Cabinet members want a clear explanation of Maori customary rights, or title, and how that might be interpreted by the courts.

They could start by reading something Doug Graham wrote a few years ago, or even the the Ministerial review, starting at page 151. And if they have read the review, then this "clear explanation" that is sought is either a good out to do nothing any time soon, they are seeking a solution that is not in the ministerial review, they don’t think the report is clear enough, or they want to avoid making a decision on customary title. No doubt John Key is "relaxed" about it all.

The ministerial review's first recommendation is to immediately repeal the Foreshore and Seabed Act. The second is to form a policy based on premise that the whole of the coastal marine area (the foreshore and the seabed) is subject to customary title unless it can be clearly shown that such title was not wrongfully extinguished. The third is to draft interim legislation recognising customary title. The rest flow on from that. National wants to please everyone. It remains to be seen how it will recognise iwi and hapu customary rights and do so. In other words, how it would promote equal rights for all.

Policies and legislation recognising indigenous rights do not have a habit of pleasing everyone.Perhaps this is why Attorney General Margaret Wilson said in parliament that although the Foreshore and Seabed legislation breached the Bill of Rights, due to it being blatantly discriminatory, this was "demonstrably justified in a free and democratic society".

Brash admits Foreshore and Seabed law was a mistake

The man who brought you the " one law for all" and the Nationhood speech [PDF] that sparked a great deal of anger has has said that he believed National got it wrong when it opposed iwi being able to test their claim to ownership of the foreshore and seabed in court.

That inability for Maori to go to court was the injustice in the Foreshore and Seabed Act. Contrary to some opinions, Maori did not have ownership rights extinguished under the Act.

The 2004 Nationhood speech led to what Shane Jones describes as "inflammatory, divisive and extremely hurtful" debate around race relations and the foreshore and seabed legislation. The Foreshore and Seabed Act was written in response to a Court of Appeal case that suggested iwi able to prove continuous customary use of the foreshore and seabed might have a claim to freehold title.The act stopped Maori seeking title through the courts. even National screamed Maori Gain Control of the Beaches.

Now, it appears the Act will be scrapped.

Brash rejected the Treaty. Therefore, any person who rejects an important part of our constitution is never fit to be a leader of a major political party in New Zealand in this day and age, as they may end up leading the country.

It was a real mistake placing Don Brash fifth on the 2002 National party list to secure his entry into parliament.
update
So what next for the Foreshore and Seabed? Read Tim Watkin from Pundit. He has some good thoughts on this.

Why it happened: The Foreshore and Seabed Act and subsequent ministerial review

Well I’ve still to finish reading the ministerial review of the Foreshore and Seabed Act 2004. But what is lost on many is how the Act and the subsequent review occurred and its relevance to Labour getting turfed out of office in 2008.

Firstly, the Foreshore and Seabed Act is not just about the Treaty of Waitangi, although Treaty principles and Articles were breached. It is more about the doctrine of Aboriginal Title.In a nutshell, this is simply is that indigenous peoples have some form of property rights, which are not affected by a transfer or acquisition of sovereignty. Such property rights are recognised by Article II of the Treaty of Waitangi. So when people say that the Foreshore and Seabed Act breached Article II of the Treaty (it breached Article III as well), that is reflected in the doctrine of Aboriginal Title.

Coastal marine areas were subject to this Aboriginal or customary title unless it could clearly be shown that it had been extinguished. Prior to the Ngāti Apa case that eventually led to the Foreshore and Seabed Act, Government policy was that Māori customary title had indeed been extinguished, whereas Māori asserted their ownership from first contact

The whole litigation started back in the mid 1990’s. The Marlborough District Council refused to give Ngāti Apa a mussel-farming licence to farm in their traditional area. The iwi eventually appealed through the courts, which ruled against a contention that statutes affecting the foreshore and seabed extinguished Māori customary title.

The Te Ture Whenua Maori Act 1993 gave the Māori Land Court jurisdiction to determine whether the foreshore and seabed was Māori customary land. The Court of Appeal in Ngati Apa said it could determine title, which led the Government to claim that Maori could take over the beaches to the exclusion of everyone else. It decided that allowing public access to the beaches would be better even if the Treaty is breached in the process. In reality, the worst case scenario is that a small number of iwi may have successfully tested their claim to customary title in court. However, rather than let that process run its course [and it is most unlikely that the Maori Land Court would have declared large areas of the foreshore be turned into freehold land, anyway] the government kneejerked, deciding to legislate to nationalise property rights to public areas of the foreshore and seabed just four days after the court decision.It intended to deny Maori the right to explore their common-law property rights in court – supposedly indissoluable rights - while allowing other New Zealanders to secure private ownership.

The Waitangi Tribunal found the Crown, in choosing to legislate, seriously breached the principles of the Treaty by failing to respect tino rangatiratanga, partnership, active protection.

Instead of amending the Te Ture Whenua Māori Act and the Resource Management Act, the Government incorporated other changes to those Acts into the Foreshore and Seabed legislation - despite select committee disagreement. The Act ignored the doctrine of Aboriginal Title as it failed to properly balance customary and public interests. It denied Māori options to pursue due legal process. It was discriminatory against Maori. Note: Don Brash was not the National Party leader when Labour decided to legislate.

The Maori Party was formed in the backlash of this Act. The ministerial review was part of the agreement between the Maori Party and National. The issue in the review was essentially whether the government unjustly expropriated Māori customary interests in the foreshore and seabed by vesting it public areas in the Crown, and by imposing restrictions on recognition of customary interest. It found that the government did just that and recommended the Act be repealed.

We have the Maori seats to thank for this review as without them, the Maori Party would never have been formed and the ministerial review would most likely not have occurred. We can also thank the Marlborough District Council for a National Government, as without its decision, subsequent events leading to the formation and rise of the Maori Party would also not have occurred,and we'd probably have a Labour-led Government with Labour holding most of the Maori seats.

Foreshore and seabed law should be scrapped

No surprise. The ministerial review of the Foreshore and Seabed Act found the legislation to be deficient in that it was biased against Maori and failed to recognise property rights. The report is 160-odd pages and I`ll comment on it after I have read it. The Government will take a couple of months to formally respond, no doubt, but Minister Findlayson has said that public access to the beaches is not going to be an issue. Never should have been. Even if Maori customary title was to convert into freehold title, parts of the Foreshore and Seabed would not have to come under Maori control, and public access to beaches would never be restricted. As Tariana Turia has said:

Public access could have been protected previous to this legislation though using the Te Ture Whenua Maori Act and the RMA. We didn’t need to have a piece of legislation that took away the customary rights of hapu to enable people to have those access rights – they are there in law and New Zealanders have right of navigation and access to all areas of the beach.

The press conference with leaders of the Maori Party is here.

The Foreshore and Seabed review

The architect of the Foreshore and Seabed legislation, Michael Cullen, has made Labour's submission to the Foreshore and Seabed review. Labour has done an about-turn on the legislation it so dramatically passed in 2004.

Now, Labour wants to restore the ability to apply for an award of customary title - in the first instance to the Maori Land Court but with a right of appeal to the High Court. But Labour does not believe customary title should be able to be converted into freehold title, which would enable its sale. So why didn't Labour do that instead of passing the Foreshore and Seabed legislation in such a panic? Michael Cullen's submission said that further thought needs to be given to just what powers the possession of customary title would involve in conjunction with other legislation like the Resource Management Act. He submitted that the agreement with Ngati Porou would be a good starting point in any discussions. This agreement recognises and protects customary rights by granting the iwi effective co-management of the coast, complete with consultation rights on fisheries and conservation decisions and a veto on resource consents which would interfere with customary activities.

Had Labour taken that position when they drafted the Foreshore and Seabed legislation, who knows what our political arrangements may have been now. And if the Maori Party didn't have an agreement with National, the review may not even have taken place and we would never have got a formal admission by Labour that it botched its own law.

The Maori Party doesn't just want a review: It wants a repeal.

[Just as background, as a result of a long dispute between a coalition of South Island iwi and the Marlborough District Council over customary fishing and aquaculture rights, the Court was asked to rule whether there was any legal barrier to land below the high water mark - the foreshore and seabed - being declared Maori customary land. It found that there was not. Whether a particular piece of foreshore or seabed was in fact Maori customary land was a question of fact, to be determined by the Maori Land Court - but the Court unequivocally had the power to make such determinations.

The Labour Government did not want Maori to be permitted to win customary title through the courts, so it passed legislation to permanently and retrospectively vest ownership of the foreshore and seabed in the crown.The legislation was justified by two arguments: the need to preserve public access to what was generally assumed to be a communal space, and the need to prevent uncertainty to business.

The legislation removed the jurisdiction of the Maori Land Court to hear claims for ownership of the foreshore and seabed - the sand that gets wet by the tide - allowing exploration of customary usage rights, but short of the award of actual customary title, or ownership. It created a system for recognising and managing those customary rights, through comprehensive negotiation.]

[Hat Tip No Right Turn]

What would happen if we repealed the Foreshore and Seabed Act?

Four years ago today, on November 24 2004, the Foreshore and Seabed Act received the royal assent and became law. Now with the Act under review by the new National-led government, No Right Turn asks a relevant question; what would happen if we repealed it? His post is reproduced in its entirety , and with the writer's consent.

The Foreshore and Seabed Act was passed in response to the Court of Appeal ruling in Attorney-General v Ngati Apa ([2003] 3 NZLR 643). As a result of a long and convoluted dispute between a coalition of South Island iwi and the Marlborough District Council over customary fishing and aquaculture rights, the Court was asked to rule whether there was any legal barrier to land below the high water mark - the foreshore and seabed - being declared Maori customary land. It found that there was not. Whether a particular piece of foreshore or seabed was in fact Maori customary land was a question of fact, to be determined by the Maori Land Court - but the Court unequivocally had the power to make such determinations.

This rather narrow ruling was immediately misinterpreted by Maori and Pakeha alike as saying that Maori owned the beaches, and its limited scope and careful caveats were drowned in a tidal wave of hysteria and fear. The then-opposition (and now-government) engaged in an outright campaign of fearmongering, raising the spectre of a flood of claims and of successful claimants restricting public access and stopping people from going to the beach. It worked. Within four days the government announced its intention to legislate to "clarify that in fact the seabed and foreshore is owned by all New Zealanders in the form of the Crown". And they proceeded to do just that - without any serious attempt to consult Maori.

The resulting legislation did three things: it permanently and retrospectively vested ownership of the foreshore and seabed in the crown; it removed the jurisdiction of the Maori Land Court to hear claims for ownership of the foreshore and seabed, and limited the courts to granting only customary usage rights which could not amount to full ownership; and it created a system for recognising and managing those customary rights. While motivated primarily by a desire to avoid an electorally damaging backlash from Pakeha, the legislation was justified by two arguments: the need to preserve public access to what was generally assumed to be a communal space, and the need to prevent uncertainty to business. The possibility of repeal will no doubt raise these issues again. So how much of a problem are they?

While there is a great deal of fear over public access, it seems that it is largely unjustified. The heat and fury of the debate has masked a vital fact: it is not the actual beaches in question, but the intertidal zone - the sand that is wet by the tide. In its report [PDF] on the issue, the Waitangi Tribunal noted that there is a significant practical question of how access to this area could really be limited when the land above it is - and again, this has never been in doubt - public space. Regardless of who owns the foreshore, no-one is really going to be able to put up a toll-booth and charge anyone taking a dip in the water.

As for the legal question, the Court of Appeal noted that iwi would likely be able to show only limited usage rights, and that claims for full ownership would face "a number of hurdles in fact and law". Even if those hurdles were passed, many iwi have publicly stated that they have no intention of limiting access if their claims were successful - they are about the recognition of mana and kaitiaki, not the exclusion of others. While land successfully claimed could be sold to owners who were not so generous, this is even more unlikely, and would violate Maori cultural norms. The Waitangi Tribunal suggested the "threat" could easily be addressed by legislating to prevent such alienation - legislation which, if done properly, would be likely to enjoy the widespread support of Maori.

The business uncertainty argument is more interesting. In their "proposals for consultation" booklet, the government argued that allowing the legal process to proceed

also has the potential to create significant legal and administrative confusion and uncertainty, because it is not at all clear how private ownership of the foreshore and seabed would affect development and activity in the sea itself, and other legal rights. How would freehold ownership of the seabed under the Land Transfer Act be reconciled with the rights of commercial and recreational fishers? Or with tourist operators who have a licence to visit particular areas? Or with the internationally recognised right of innocent passage for vessels through New Zealand’s territorial sea?

This fear was echoed in responses from the public. [PDF]

Business investors were concerned that recognition of customary rights may compromise the viability of some operations. The potential for there to be additional hurdles to overcome in the consent process, occupancy fees, requirements for partnership and profit sharing with Maori, and a breakdown in race relations that would undermine cooperation, were among the risks they identified.

In their report, the Waitangi Tribunal questioned whether these uncertainties were really significant, or so dire as to justify an instant fix which undermined the rule of law. While claims might take years to work their way through the courts, because of the way our legal system works nothing would change in the meantime. And because the courts would be highly reluctant to negate existing permits and usage rights which had been legally granted, they would not be immediately affected even if a claim was successful. The worst "uncertainty" commercial operators would face is that conditions could change when their permits or licences came up for renewal - exactly the same as they face now. This hardly seems compelling. And while nervous businesses could be more reluctant to invest in coastal development until the legal situation was resolved, that would hardly be the end of the world. As the Tribunal noted, the government had imposed a three-year moratorium on aquaculture development to allow it to finalise policy, without any real ill effects.

So what would happen then if the law was repealed and the situation returned to the status quo ante on November 24 2004? Nothing much. Iwi and hapu would file claims, and these would work their way through the courts. And as cases were decided and appealed, the courts would gradually establish a framework for granting customary rights and a threshold for full title. Local bodies and government departments would then work out and establish a consensus on how to recognise and protect those rights within the RMA and other legislation. The net result would likely end up looking similar to the deal just signed with Ngati Porou [DOC], which recognises and protects their customary rights by granting the iwi effective co-management of the coast, complete with consultation rights on fisheries and conservation decisions and a veto on resource consents which would interfere with customary activities. We would end up pretty much where we are now, but without trampling all over the rights of Maori.

This suggests that we have nothing to fear from repeal. It would result in a legal process which would take time, but that's hardly the end of the world. And if the government wants a quick resolution, it can always settle. That's what it did last time something like this happened - when the courts ruled that the government could not allocate fishing quota in the 1987 fisheries cases. In that case, the government had agreed an interim settlement within two years and a final one - the Sealord Deal - within five. It could do the same with the foreshore and seabed. Both government and iwi would benefit from the certainty of a settlement, which because of the inherently local nature of customary rights, would have to focus on creating a framework for their recognition and interaction with existing rights. The resulting legislation would likely look very similar to the existing sections 3 and 4 of the Foreshore and Seabed Act, allowing the acknowledgement of mana whenua, recognition of customary rights, and co-management. It could even include a public vesting, but the big difference is that it would all be done with the consent of Maori, rather than without it. And that would make all the difference in the world.