Sunday, October 17, 2010

David Round: "Free" Beach Access - the Truth!

Just a brief note this week about public access under the government’s Marine and Coastal Area (Takutai Moana) Bill. The Attorney-General and Minister of Treaty Settlements, Mr Christopher Finlayson, has said on various occasions that it is ‘clear’ that public access will be allowed as of right, and free of charge, over any foreshore and seabed to which Maori might be granted ‘customary marine title’ under the bill. Now this is simply not the case, and if Mr Finlayson thinks that it is the case, then he is either dishonest or not as good a lawyer as he thinks he is. There are two issues here. One concerns wahi tapu areas ~ I shall deal with them in a second, but it is pretty clear that there, there will not be public access as of right. The second is a more general issue, dealing with all foreshore and seabed which becomes subject to ‘customary marine title’. Here it is certainly possible to interpret the bill so that there may be public access as of right, but (as the bill is drafted at present) it is by no means ‘clear’ that there is that public access. I shall explain. I should warn non-lawyers that this explanation may become ever so slightly technical. But don’t be nervous, it is all really perfectly simple, and I shall be with you holding your hand every step of the way.

As we are aware, then, the new bill renames the publicly-owned foreshore and seabed, currently vested in the Crown, the ‘common marine and coastal area’ (which we will now call the cmca), and declares that it has a ‘special status’, whereby no-one, neither the Crown nor anyone else, owns or is capable of owning it. Nevertheless, an ‘applicant group’, which must be an iwi, hapu or whanau group, may seek recognition of its ‘customary marine title’. It may do this in one of two ways ~ either by proving its case in the High Court, or by private negotiations with the Minister from which the public is excluded and from which there is no possibility of appeal or judicial scrutiny. (This is remarkable, is it not? Presumably the reasoning is that judges are fallible, and can make mistakes which should be corrected by higher courts, but Ministers of the Crown ~ Chris, certainly ~ are just so much better than judges, perfect, really, and so no scrutiny or review will ever be needful. Politicians ~ lovely people ~ honest as the day is long, only trying to help, no need to worry, you just lie down and relax……) Once an applicant’s claim is recognised, anyway, that group then has ‘customary marine title’.

Now, access. Section 27 says that ‘every individual has the right to enter, stay in or on, and leave the cmca; the right to pass and repass in, on, over and across the cmca, and the right to engage in recreational activities in or on the cmca’. Chris would also point out that section 60 of the bill says that customary marine title is described as existing ‘in a particular part of the cmca’ (and so, therefore, the section 27 rights of access continue to apply), and he would point out also that section 63 says that only the rights listed in section 64, and further described later, may be exercised by the holders of customary marine title, and that the right to exclude the public is not one of the rights listed.

Well, that might seem to settle the matter, but it is not quite that simple. It could be the case, certainly, but as I say, it is not ‘clear’, for arguments also run the other way. The first point to note is that in the present legislation, the Foreshore and Seabed Act 2004, Maori groups are able to obtain a similar recognition of what are there called ‘territorial customary rights’. If a group does succeed in obtaining such recognition, then it may seek the establishment of a ‘foreshore and seabed reserve’; and if it were to do that, then section 40 applies, ands describes the purpose and status of such a reserve. Section 40 spells out very clearly that one of the purposes of such a reserve is ‘to enable that area to be held for the common use and benefit of the people of New Zealand’, and further that those in charge of the reserve are not entitled to ‘charge or collect fees or any other form of payment …for the use or occupation of the reserve’. Now the point is this ~ that there is a well-established and perfectly sensible rule of statutory interpretation which says that where one statute replaces another, and where the new statute does not repeat a particular provision in the previous one, then it is to be presumed that Parliament has omitted that earlier provision deliberately, and therefore the legal situation is different from what it was under the previous law. After all, this is a situation where the new statute is similar to the one it is replacing. Why has this particular provision been left out? The only obvious answer is, because Parliament intended that it no longer apply. So here, therefore, where in the government’s new bill there is no equivalent of the previous prohibition of charging ~ nor any statement that the area is to be held for, inter alia, the benefit of all New Zealanders ~ the conclusion to which this points is that Parliament in this new bill does intend to allow charging. It is simply impossible to believe that the new bill left out these provisions simply by accident. It must have been deliberate. And why?

Moreover, section 63 (2) says that holders of customary marine title may ’use, benefit from or develop (including deriving commercial benefit) from exercising’ their rights. What commercial benefits might be available? One very obvious possibility is tourism, or just generally charging visitors for access. Not many other possibilities spring to mind.

True, section 63 also says that holders of customary marine title enjoy only the rights listed, and the right to exclude others is nowhere specifically listed. But it could be replied to that that the right to exclude others from ones own property is an absolutely fundamental one, so firmly attached to land that it does not even need to be mentioned; and section 60 does describe customary marine title as ‘an interest in land’.

The legal situation, then, is far from ‘clear’. On the wording of the bill as it is at present, it is quite conceivable that some future court, asked to rule upon the matter, might find that the indications in the Act that the public may be excluded or charged for access are stronger than the indications that there should be free and unlimited access. And that is a possibility even if the court were entirely unbiased. If the judge were one similar to our present Chief Justice, who has publicly stated that she considers herself entitled to strike down Acts of Parliament if they offend against her own interpretation of ‘Treaty principles’ or international law (including, presumably, the United Nations Declaration on the Rights of Indigenous Peoples) ~ well, the chances of such a decision might be somewhat stronger. Mr Finlayson has recently promised to remove all doubt and make the situation absolutely clear. That is good. But he may not get away with the claim that the situation is clear now. I cannot help but think that in fact the situation was deliberately left unclear.

The second issue is of ‘wahi tapu’, an enormous exception to the rule of public access, and one on which Mr Finlayson has always avoided comment. When, after this new bill becomes law, customary marine title is first established over some particular area, then the applicant group may at the time of its application seek to include recognition of wahi tapu or wahi tapu areas, and it is 100% clear that the public may be wholly or partly excluded from these areas, or allowed entry only on conditions. Section 77 specifically speaks of ‘prohibitions or restrictions on access’. So very probably there will not be any public access here. And who knows what these areas will be? They are areas currently open to the public, of course, and public access to them now presumably does no harm; but in future the public may very well be excluded from them, and we simply will not know where these areas are, or how large they are, until after this bill has become law. We could be in for some very unpleasant surprises here. So even leaving aside the issue of interpretation above, it is pretty ‘clear’ that areas of coastline at present open to the public will become wahi tapu areas in future and the public will be excluded. Public access can be guaranteed to continue to be available everywhere only if no wahi tapu are ever established. We surely cannot suggest that the Minister is guilty of such bad faith that he does not intend to allow wahi tapu areas, even though they are provided for in his bill. (The decision, of course, is not necessarily up to him ~ the courts can also recognise customary marine title.) The ugly alternative, though, is to consider that the Minister is not telling the truth when he guarantees continued public access. Bad faith one way or another…is there any other explanation?

28 comments:

Anonymous said...

The Marlborough sounds are a prime example
Three local iwi will have no problem in proving their claim on the whole sounds area

Anonymous said...

Is there not more than one issue here? firstly the access to the foreshore and secondly, access to the seabed. Surely a charge for access to the foreshore over private land is acceptable but not where access is over crown or public land. Like wise with the seabed, how any sane thinking person can claim domain over the seabed or anything above it, is beyond me.
What concerns me about all this is that an assumption was made by Labour way back that ownership might be given to Maori via the courts. Now we look to change the rules a bit and as a result, are continuing the myth that we believe what Maori and some Pakeha are saying about ownership.
Its all excretia and those playing the game should be aware of the consequences.

Anonymous said...

Is this situation not covered by the additional provision that Rodney Hide is now trying to have included in the new bill ? ie that public access will be free and available to all ?

Thomas AB said...

Maori have charged "koha" for beach access in the past, they will do it in the future.

Anonymous said...

I am suspicious of Key and Finlayson (who worked/works(?) for Ngai Tahu) and Key who recently sent a secret delegation of Maori to New York to sign the "declaration of the rights of indigenous people" to which the public were only made aware after it became a fait accompli.
I voted for Key, but no longer trust him after realising that there are negotiations with the Maori Party to which we appear to kept in ignorance.Key needs reminding that the Maori Party got no electorate seats and about 2% of the vote nationally.

Anonymous said...

This is race based legislation which is dangerous, particularly when it gives one group rights & privileges not available to others.
If our fears about the outcome of the Bill are realised, it is a sure recipe for racial division. The harm that this could do to our country is what worries me most.
By the time we know the outcome it will be too late. The old adage "Give an inch and they take a mile" will apply. The mataitai application for the whole of the Marlborough Sounds is evidence of this.
It is very easy to give but when it all turns to custard it is very hard to take back. Better not to give in the first place.

Anonymous said...

@ Anonymous 11.33 "but not where access is over crown or public land." Mate, in three or four years' time there will be NO CROWN LAND in this country, so your statement a moot point. At the outside, I give it 5 years. The legal, social and constitutional concept of 'Crown Land' will be consigned to the dustbin of history by 2015..... at which time if we behave ourselves we might be allowed to buy the right to remain in the People's Democratic Indigenous Republic Of Aotearoa.
Dave Mann

kiki said...

I demand the right to the coast over any land. No one should be denied the right to the sea or for that matter the rivers and lakes by anyone. These things belong to the people no-one should deny us the right to any part.

Anonymous said...

The "Waahi Tapu" will be the tool of exclusion and the "continuous use" test of customary right will not apply to its creation/invention.
Where a Waahi Tapu is claimed on an area traditionally used by all for access - access right should not be extingushed - and should be forever free. Wheeled access should be protected also - quad bikes etc.

Anonymous said...

where i see most private property no admittence tresspassers will be prosecuted. signs is on private pakeha land and the same pakeha is complaining abuot Maori not giving him access to Maori land surely this is racist ,racism is surely strong and alive in Atearoa or new zealand whichever racist faction you are from

Anonymous said...

It is a misapprehension that this issue is only with Maori. There are well over a thousand instances of land holdings which go below mean high water mark. Customary title is only one of the land holding titles; fee simple is another.

In this respect NZ law differs from UK where there are no titles which extend below high water mark, and when a group or individual goes to court to defend a legally held title, it is not really on for government to pass legislation to remove that title. I am sure that if parliament passed a law removing the title to private houses or farms, there would be a real outcry.

Christopher Finlayson seems to me to be a good lawyer and has explained very clearly at public meetings that the government is setting out to correct a wrong and bring the whole matter back within the rule of law which is what we prefer to chaos and anarchy.

I don't know if David Round has met with the Attorney General or attended any of the public meetings, but Mr Finlayson answers letters most courteously.

steve johnson said...

This Government underestimates the passion kiwis have for the forshore and sea bed answer this why should I beg for free access when I as a kiwi already own it, The Government owns it for all New Zealanders, iwi, hapu has no more rights to it than anyone else this deal must not see the light or day and it won't

Clive McDonald said...

If John Key and his Government changes the existing Act there will be Blood on the sand and New Zealanders will be separated for ever. How can the National Government have a Mandate to do this?

Anonymous said...

And where's that infamous anti-apartheid campaigner John Minto when we need him? I guess he only cares about the dark-skinned folk.

Anonymous said...

This is all about greedy maoris. I will not be told that I have no right to go to a public beach, or have to pay to use what belongs to the whole country (the Crown). Turning this crap into law does not make it RIGHT. Man, we have seen some appalling examples of that in recent times. My neighbour is 1/16 maori and he is disgusted at the behaviour of the so called Maori Party. I voted for key, what a mistake that was. Won't happen again I can tell you.

Anonymous said...

This should not be, tread lightly Mr Key, as you have lost my vote.
I can see others changing party as well.
Put it back as it was, it is not to late. Crown land gives all the people of New Zealand the right to to beach access as well as our visiters from
other places.

65 and over.

Anonymous said...

I see this new bill as a further means of extending what Maori call their rights. It is about time we redefined the definition of who is a Maori. The majority of them have pakeha blood in them. We should all be New Zealanders - one nation. Mr Key wants us to catch up to Australia. We are not going to do this while the gravy train continues. All Maori have the same chances as pakeha, the fact that they don't get out and use them is their own fault. Like a lot of New Zealanders I know some great Maori people who get on with their lives and are doing well without any handouts.
Signed 70 and over.

Anonymous said...

I fail to see what is wrong with the Crown owning the foreshore and sea bed so all New Zealanders have free access. It should stay that way. The Maori Party are an evil group of people with very transparent intent. Hone Harewera showed them to be a bunch of grasping racists. I am ashamed to say I voted for John Key but not again.

kiki said...

This shows what will happen with land settlements. read this article and weep, they want to restrict access to our lakes.

http://www.stuff.co.nz/timaru-herald/news/4209783/Boatie-Fix-ramps-before-charging

Anonymous said...

The whole seabed/foreshore bill is full of anomalies which will be manipulated and massaged to fit Finlaysons and maori requirements,(just like the Treaty it's self)The maori words used are there to confuse, and can be twisted to fit future requirements.

Anonymous said...

If Martin Luther King was alive today,he would stand against everything these maori radicals stand for.Hariwhera/sharples/etc.etc take maori back into the dark ages.they bring division to our nation.SHAME

Anonymous said...

If I cant fish and hunt in New Zealand then I am off.

My views are mixed.

The reality is the crown has a signed a document which they need to follow.

We have to go backwards to go forwards and one day all this will be behind us.

Apart from this issue, John Key is by far the best we have had for a long time we still need to have trust in our leader.

Maori are the indigenous people of New Zealand and it is great that the Crown is saving Maori culture.

Im not a lawyer but looking at all this from a simple mind, now that the crow has honored the treaty, does that mean Maori have to honor the handing over of the country to the crown and therefore the crown (government) should be fighting for this land.??

Or for fun, give the maori what they want sooner rather than later, change owner ship to maori, dropping the crown, all NZ becomes maori (or whatever you want to call us) it looks like we are heading this way at the moment, sooner rather than latter preferably before we are sucked dry of all of our tax payers money during a global depression from all the treaty claims how many billion has been spent already in the last couple of years (keep the crown laws in place so we don't have tribal wars as we are now all tribal) and then the treaty claims are back across the ditch in UK.

Every one gets what they want. Win WIn.

7th generation kiwi that came on the second boat.

Loyal said...

I feel like a new teacher in front of a class of unruely children, bickering and fighting over a few crumbs.
New Zealanders we all are and it is only a few greedy Pakeha and Maori that are fueling the fire!
Time to grow up girls and boys, we live in the same country, we all have the same rights, we all love NZ.
It is time to let the treaty rest. Do not misunderstand me, I respect the document, but I do not respect the actions of what our brothers and sisters, mothers, fathers and forfathers have done in the name of the treaty.
For me, enough is enough!

C C McDowall said...

While I have no doubt that some of the Coastal Coalition people are sincere in their beliefs, the phraesology used in your newspaper advertisements display underlying attitudes common amongst Pakeha rednecks.

"Revert to a tribal aristocracy, the part-Maori tribal aristocracy, and [my favourite]
tribal aristocrats - who, as always, will pocket most of the money."

Can one of you provide even ONE name of a "tribal aristocrat" and the exact - or even approximate - sum of money they have pocketed?
I think not.

What really makes me suspicious is that the Pakeha right-wingers who back the Coalition can make a great deal of fuss about Maori gaining some Crown property (foreshore), but have not made a peep about Pakeha getting their hands on Crown property ( pastoral leases).

The Crown Pastoral Leases involve 2.4 million hectares, about 10% of New Zealand. Over 270,000 hectares is already in private (ie Pakeha farmers) hands AND the taxpayer has paid these Pakeha farmers $18.5 million to take public property!

The tenure review process has been going on since the 1990s, the foreshore issue since 2004, but the review has been totally ignored by the Coalition, and our Pakeha dominated media.

Given the fact that the Coalition is kicking up a stink about Maori maybe getting Crown property but remains silent about Pakeha getting Crown property seriously damages your credibility as even-handed non-racist "we're all New Zealanders" campaigners.

I suspect most of the Coalitions supporters aren't even aware of the Crown's unstinting generosity to Pakeha farmers.

Long experience has taught me that the "We're all New Zealanders" line is nothing but the mating call of the Pakeha redneck.

C.C. McDowall Rotorua

Anonymous said...

I have no problem with people not allowing access to a beach across their private land! However I have no intention of been run off a beach or ordered to pay for access when travelling down a public road that ends at the beach! I've had a few people try that on over the years, at pakiri and near Kawhia. I do however not accept the grant of any beach, foreshore, or seabed to anyone because every New Zealander including those who were not born here (I was) has a right to it! What are they trying to do here?? Do they want blood shed on the beaches? Seriously that's what will happen!

Ali Mac said...

The only rednecks are Marxist MOTIVATED seperatist Maori. These are not for our nation. They are for anarchy and communism. The enemies of Judeo christian ethic and falsifiers of historical truth.
These are the new psychological terrorists of our nation.
Their secret goal: money from the white- man's taxes, coastal real estate gifted( stolen) and absolute power over all people just like Mugabe.
. They want to dominate and enslave us That is: we framed wicked and thieving "white-man' on behalf of "our people".

This bill is just plain evil; full of lies.

There never was any title Maori had ever. They were nomadic not like us. They starved if they did not pillage for food and property. They fought wars to get more food from another tribe and to steal his better food grounds. This is what Pite Sharples and Harawhira and Turia want to happen again. War; theft and hatred. Legalised appartheid.

Sharples and Shane Jones etc have intimidated members of parliament during debating time with their barbaric jibberring language and their demonic wailing and their violent tones of voices venting veiled threats to us all.
They are the true rascists. The mosr ardent rascists of all time.

We shall fight on the beaches; we shall fight on the landing grounds; we shall fight in the air and on the fields and on the "wahi-tapu" the customary marine title land.
They were cannibals. As cannibals they were never interested in any property boundaries or any legal order in any form..Now they are!!!
Total garbage Jones and Horomia.

Finlayson and Key have seemed gutless wonders on this land grab.
And where are the leaders of the professing pentacostal church on this one .? Silent!

Anonymous said...

I am not generally a supporter of civil disobedience but if they try and restrict access to our beaches this might be the only option.

Bill Morgan said...

The most annoying thing about this is that Maori are NOT the first settlers of NZ and can not claim to be the indigenous people of NZ, which is why Helen Clarke would not allow them to sign the global indigenous people accord. Thus they are not entitled to anything.
The true settlers were the Tuhere and Waitaha who were here for thousands of years, until killed and eaten by the late arriving Maori.
The Portugese and others came to NZ and traded with these people for centuries.
Northland has many of these people's stone ruins, and burial caves COMPLETE with skeletons and mummified remains are plentiful especially in limestone areas like Taupo, but these facts are hidden by government, and access to them controlled and thus prohibited.

Google Maxwell C Hill, scroll down until you see a video and play it. You will have your eyes opened!

Cheers Bill