The Letter
Monday, 6 October 2003
FORESHORE, LAW AND POLITICS CONFERENCE
On Saturday, ACT dismantled the intellectual and moral basis of Labour’s foreshore proposals. ACT held a dialogue with
all NZ and some of the leading authorities to produce a positive solution.
THE LAW
Distinguished lawyers attending the Conference opined that the Court of Appeal decision in the Marlborough case was
wrong. On the narrow point, does the Maori Land Court have jurisdiction to hear a claim to foreshore and seabed, Paul
Cavanagh QC was very clear. The Te Ture Whenua/Maori Land Act 1993, s.18 only allows the Court to investigate freehold
claims. No foreshore and seabed is Maori freehold so it follows the Maori Land Court does not have jurisdiction. Marcus
Poole, a distinguished practitioner in the Maori Land Court, was equally critical of the Court of Appeal and Judge
Hingston’s original judgement in the Maori Land Court. Section 132(2) of the Act states that "Every title to and
interest in Maori customary land shall be determined by Tikanga Maori" - that is, in accordance with Maori customary
"values and practices". Each claim must meet a four-point test: (a) The title was in existence in 1840; (b) the land was
occupied and used from 1840 to today (ahi kaa - keeping the fire alight); (c) the claimants must prove "exclusive use";
(d) proof of who the claimants are. Marcus Poole stated, "Judge Hingston has misread the Act". Instead of following s132
to establish the facts, the Judge said, "For the purposes of this enquiry it is assumed there were existing Maori
customary rights prior to 1840". The Judge conceded, "There has been no evidential enquiry to establish there were such
rights". Judge Hingston then ruled, "that in the absence of extinguishment, customary foreshore remained extent". The
Chief Justice Elias endorsed this revolutionary new doctrine saying, "that the judgement of Judge Hingston in the Maori
Land Court was correct". The eight Maori Tribal Authorities can now return to the Maori Land Court without producing any
proof and seek a vesting order to the whole of the Marlborough Sounds foreshore and seabed!
PRIVY COUNCIL APPEAL?
On two separate issues, jurisdiction, and on the correct legal procedure to determining Maori customary title, the Court
of Appeal is clearly wrong. Helen Clark and Margaret Wilson do not want to appeal because to do so would be to admit
that abolishing the Privy Council is a mistake.
WHO SHOULD OWN THE SEA?
Brian Lee Crowley from the Canadian think tank AIMS said, "...the old cultural assumptions on which the common property
regime was based are crumbling. There is now going to be a fight for control...the reality is that the ocean is becoming
more valuable – there are more of us who want to use it for competing purposes...economic and technological
changes...have now made aquaculture an industry that has risen from a negligible presence on the world economic scene to
a business worth over $30 billion US." Crowley cites the example of Chile where the creation of secure, tradeable
property rights has resulted in a US $3 billion salmon industry and NZ with its tradeable fishing quotas revolutionised
our fishing industry. Crowley’s advice was that "any solution to your problems over control and ownership of the
foreshore and seabed that involves further entrenching of Crown or public domain ownership and regulatory control" over
time will not work. The future is with "sound, defendable, tradeable valuable property rights".
PUBLIC DOMAIN PROBLEMS
"When ownership of an asset is unclear no one knows how to enter a contract for use because no one knows with whom to
deal. If no one owns the foreshore or the seabed, who can license its use, or is entitled to its value in the market?" –
Owen McShane.
NATIONAL’S POSITION
National MP, Wayne Mapp, accepted the invitation to speak. "Crown ownership does not preclude customary rights...
parliament has the sovereign power to clarify the position... National supports private property rights...The issue of
customary rights has to be dealt with and there is precedent to do so...The Fisheries legislation provides for 20% of
newly created quota to be granted to Maori…A similar mechanism could be developed for grants of marine farm licences…At
the core of National’s solution is our desire to promote unity between all New Zealanders".
"WE WILL FIGHT THEM ON THE BREACHES"
"The decision of the Court of Appeal was not based on race and ethnicity but instead on customary property and the right
to be heard in court… In fact the Treaty does not bestow any greater rights on the general Maori mass... It is our view
that: a) the Crown is bound to respect the proprietary rights of Ngai Tahu whanau and hapu even if they are property
rights held in common with others; b) the Crown cannot extinguish Ngai Tahu proprietary rights, at least in times of
peace, without the consent of Ngai Tahu ... The PM is being a very cheeky Clarky" (confusing access to beaches above the
high water mark, with foreshore between high and low water mark). "Ngai Tahu want you to recognise our property
rights..." -Tahu Potiki
ACT ON THE BEACH
Richard Prebble presented ACT’s five-point position on the foreshore issue. 1. The government should appeal the
Marlborough decision to the Privy Council – which it can do by joining the Marlborough Harbour Board appeal. 2. Labour
should abandon its plans to abolish our links to the Privy Council. 3. We must reject the concept of public domain. The
Crown is all of us, and we are all equal before the law. 4. We must uphold property rights. Crown ownership of seabed
and foreshore does not exclude Maori from exercising customary title should they prove that they do, and have
continuously, exercised such title. 5. We must absolutely reject any law based on race.
ON THE WEB
All papers will all be posted at http://www.act.org.nz/foreshore by 3pm and from Wednesday there will be video of all
the speeches.
INVITATION
Readers are invited to ACT’s next initiative. The launch of Deborah Coddington’s new book "Let Parents Choose".
Place: National Portrait Gallery, Bowen House, Wellington
Date: Thursday 9 October
Time: 5:30pm
For further information, see http://www.act.org.nz/choice This message has been brought to you from the ACT New Zealand
Parliamentary Office