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?