- Finlayson's basic claim is that the 2004 Foreshore and Seabed Act overrules 164 years of common law development. This is not so. It is completely untrue that the law of New Zealand recognised these customary rights for 164 years.
The Ninety Mile Beach Court of Appeal Case in 1963 held that these rights no longer existed, and that case came to that decision on the basis of the Harbours Act 1878 and the commonsense idea ~ repeated by one of the 2003 Court of Appeal judges, Gault J ~ that once the Maori Land Court had decided on title to dry land, that was an end of its jurisdiction, and there could be no other Maori owners to the foreshore. Where did they go when the tide came in?
- The main point is that the 2004 Foreshore and Seabed Act does not overturn 164 years. The Ninety Mile Beach judgement made it quite clear that since the nineteenth century this 'common law right' simply did not exist. That was the universal understanding ~ and many Acts of Parliament were made assuming that this was the law.
- It was only in 2003 that another court of appeal made a decision ~ a decision that was improper (because the Court of Appeal is usually under an obligation to follow its previous decisions) and political ~ and overruled the 90 Mile case.
Only since 2003 has the 'common law right' Finlayson speaks of existed in our law. It was remade then by the judges. But even that Court of Appeal made it clear that it would only be in rare and remote cases that a Maori claimant would be successful.
- Instead, we're now faced with the prospect that at least 10 percent of the Coast, and probably much more, will become private property.
- The introduction of private negotiations for claims and a lack of judicial scrutiny
- The burden of proof being reversed so the Crown has to prove customary title does not exist rather than claimants having to prove that it does
- The use of 'tikanga' in the bill and the variation from place to place with the possibility that 'tikanga' will actually say that Maori still own a part of the foreshore and seabed even if other people visit it!
- The exemptions of claimant groups from the RMA
- The use of wahi tapu to exclude the public with no right of challenge as to the validity of the claims
- The fact that John Key is trading away our coast as part of a deal with the Maori Party so he can stay in power after the next election.
- And the fact that the 2004 Act only restored the longstanding 90 Mile status quo ~ in a very generous way, what's more! Leave it.