Mike Butler: Fostering tribal access

The government’s preferred “no-owner” option to replace the controversial Foreshore and Seabed Act would appear to placate pakeha concerns over access to the beach and ease tribal concerns about blocked access to wealth, if any. Clever politics if Prime Minister John Key pulls this one off, but fatally flawed if it enriches tribal leaders at the expense of everyone else.

Attorney General Chris Finlayson released a discussion document on March 31, 2010, setting out the government's preferred option. That option states that:
1.The 2004 Foreshore and Seabed Act would be repealed and a new law passed which vested the foreshore and seabed as public domain.
2.Tribes could go to the High Court, or negotiate with the government, to have customary rights recognised, including customary title.
3.Customary title would not be equal to freehold title but would have rights attached likely to include the right to decide how that area was used, such as by having veto rights over developments.
4.Each tribal group would have to meet a series of tests before customary title was awarded. Those who did not reach it could have lesser rights recognised.
5.Tribal groups no longer need to have had unbroken title to adjacent land since 1840. Instead, they will have to show only exclusive use of the area over other tribal groups.
6.The new law would guarantee public access, except where unreasonable, and guarantee the rights of existing private owners. Those with fishing quota would not be affected. (1)
7.The Crown would retain the role of managing resources such as granting coastal permits. (2)

The government ruled out full Crown ownership and full Maori ownership, saying neither option would balance the interests of all New Zealanders. Also ruled out was the option of making the Crown the interim owner until claims for customary title were tested because the government believed it would delay development.

The ownership of minerals was the issue a group of eight tribal leaders was most concerned. Chairman and Ngai Tahu leader Mark Solomon said five issues needed clarification:
1.The definition of public domain.
2.Who holds the right to go to court and/or negotiate with the Crown.
3.The scope of development rights and ability to share in the benefits of commercial developments.
4.The status of non-nationalised minerals (all minerals other than petroleum, gold, silver, and uranium) and the rights of tribal groups to those resources.
5.Whether legal aid would be available to tribal groups to seek recognition of their rights in courts or negotiations. (3)

Solomon’s reaction shows that what's at stake is the hoped-for wealth from commercial activities such as marine farming, mining iron sands, or taking a margin on revenues from offshore gas and petroleum deposits. (4)

A leaked document from an adviser to the Iwi Leadership forum, that was made public in early February, suggested a model by which the foreshore and seabed be treated as a "shared" space - which it says is a mechanism to "get away from the polarising 'ownership' issue". (4)

Tribal groups would have the right to assert title in the courts according to a new test based on Maori custom and tradition ("tikanga") and the Declaration on the Rights of Indigenous Peoples. Tribal groups would gain the power to review and injunct decisions over the foreshore and seabed, and impose an access ban (rahui). (4)

The document was written by Maori strategist and Ngai Tahu staff member Sacha McMeeking. The government’s proposal, released this week, would appear to be the same as the Iwi Leadership Group proposal.

The Key-led National Party has already done a deal with the Iwi Leadership Group for Maori forest interests in return for Maori Party support to pass the National Party’s emissions trading scheme.

The controversy over the foreshore and seabed, which is the marine area between the highest point of the spring tide and the outer limit of the New Zealand territorial sea, began when the Labour Government took fright at a Court of Appeal decision.

Eight northern South Island tribes, who had failed to be awarded rights for mussel farming, applied to the Maori Land Court, in 1997, to have a determination of the foreshore and seabed of the Marlborough Sounds as Maori customary land.

The Maori Land Court decided it could consider the issue, but the High Court ruled that once the Crown had bought the adjoining dry land, Maori customary interest in the foreshore was lost while the Crown owned the seabed below the low water mark in common law.

The Appeal Court overturned that decision seven years ago. Chief Justice Sian Elias and fellow judges ruled, “in Attorney-General v Ngati Apa, that: the Crown was wrong to contend that certain statutes affecting the foreshore and seabed had had the effect of extinguishing such Maori customary title as might exist; and the Maori Land Court has jurisdiction, under Te Ture Whenua Maori/Maori Land Act 1993, to determine whether any part of the foreshore and seabed is still Maori customary land.

In the ensuing uproar, the Clark-Cullen Labour government had three options -- appeal the decision to the Privy Council, let Maori have their day in court, or legislate. They decided to legislate.

The Foreshore and Seabed Act 2004 vested in the Crown title to all foreshore and seabed land not already in private ownership. It also made some provision for Maori customary interests to be recognised in limited circumstances.

After the 2008 election, the National Party agreed on a review of the Foreshore and Seabed Act as part of a coalition deal with the Maori Party.

Comments on the story are part of the story. The New Zealand Herald’s Audrey Young noted that: “The lowering of the threshold to establish customary title is of big interest to most - whereby a tribe no longer has to have continuously owned the land next to the coastal area in question,” she wrote. (5)

Under the "territorial customary rights" in the law passed by the Clark-Cullen government, a tribe can establish customary title without having had exclusive use and occupation if it can prove that it gave express or implied permission to allow others to use or occupy and that the other users recognised the iwi's right to exclude it. (5)

“One thing is clear: that any iwi or hapu that passes the test will get an awful lot more now than under the Labour act,” she wrote.

Voter backlash is waiting. Doggone from Hamilton wrote: “Time for Maori to get over it, get with the 21st century and remember that New Zealand should be for all New Zealanders. The majority of New Zealanders are also sick to death of the money that is handed over to Maori for a small country with a population of only just over 4 million the amount of money being handed over to a very small portion of that population is out of control.” (6)

”I like most taxpayers have not in any way contributed to perceived wrongs done to Maori but we are extremely penalised by having to pay and pay again and again and there does not seem an end to the constant hand out mentality,” Doggone wrote.

The foreshore and seabed proposal has many political miles to travel, with the Maori Party raising expectations and Key soothing non-Maori concerns. Unless any agreement satisfies the demands of the voting public, this debate will return time and time again until the issue is resolved.

Sources
1. Nobody will own foreshore and seabed – Govt, New Zealand Herald, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10635579&pnum=0
2. Govt offers customary title, not ownership, New Zealand Herald, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10635777
3. Proposal needs more work, insists tribal leadership group, New Zealand Herald, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10635770&pnum=0
4. Foreshore debate all about big bucks, New Zealand Herald, http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=10624402&pnum=0
5. Great gains for Maori under national foreshore plan, New Zealand Herald, http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10635584&pnum=0
6. Maori should grab this chance, New Zealand Herald,
http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=10635775